Eastern and Western Perspectives on Surrogacy
Published by Intersentia
ISBN-10: 1780686528, ISBN-13: 978-1780686523
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To prohibit or not to prohibit? To profit or not to profit? These are questions fundamental to the regulation of surrogacy but are not questions that you will find fully answered in this book.
What the editors of this book do bring us, however, is a fresh perspective, not just on surrogacy but also on the family unit as a unifying concept in comparative law. We see evidence of jurisdictions using constitutional or human rights approaches to family legislation and regulation that places family rights and child protection at the centre of the legal discourse.
This book is the result of an ambitious five-year research project conducted across five continents and covering 21 jurisdictions. The project team have essentially produced an impressive comparative law encyclopaedia on surrogacy laws that serves to illuminate differing approaches to regulation across the globe.
As this book demonstrates, where science and technology move quicker than the lawyer's pen, practices from other jurisdictions can be helpful to fill the legal lacuna and bring clarity to bear. However, not all jurisdictions can claim to have perfected a surrogacy model.
Pre-birth orders in jurisdictions such as South Africa and Greece may appear workable but on the admission of the authors of each chapter, regulation in their jurisdictions could be improved by more detailed eligibility criteria or tackling anonymity of donors, for example.
The jurisdictions that explicitly prohibit surrogacy (France, Germany, Spain, China, Singapore, Spain and Taiwan) remind us that the debate is much more complex than merely harm versus autonomy. Those who feel that surrogacy is an exploitative practice that merits prohibition should read Walter Pinten's chapter on France and Esther Farnos Amoros's chapter on Spain. Tacit acceptance of the practice when it occurs outside of national borders, by permitting adoption for example, eventually undermines national law. The weapon of deterrence becomes a restriction on birth registration.
However, invoking this restriction can lead to human right violations in respect of the child, as can be seen in the case of Mennesson and Labassee in France. It can be even more difficult to justify, as in the case of Spain, if the jurisdiction does not allow anonymous births. In addition, some jurisdictions permit intended fathers to register themselves on birth certificates after a surrogacy arrangement abroad but deny the same right to the intended mother (see eg, German laws).
Nevertheless, the risk of exploitation remains a real danger in surrogacy practice and one that cannot be ignored by regulators. The use of ethics committees by jurisdictions such as Israel and New Zealand make for thought-provoking reading in terms of how the state attempts to minimise exploitation and control payments.
In the final chapter the authors acknowledge the difficulty in attempting to make any general recommendations about an approach to surrogacy when the attitudes of jurisdictions vary according to tradition, religion, and social and cultural influences. Their stated aim is to instead highlight emerging trends and forms of regulation. Despite this, the book does attempt to make some recommendations with a final section on 'the way forward', which is a disappointing two pages in length.
It would have been helpful to understand more about the social and cultural influences on the laws in each jurisdiction. This is particularly so, given the title of the book. The editors could have made a more direct comparison between east and west in chapter 6 (Surrogacy in a Globalised World) rather than continuing with categories of 'permissive', 'tolerant' and 'prohibitive' without reference to the different societies.
There were also some continuity issues with the book with a claim of '21' jurisdictions being covered, which was contradicted by later claims that '19' jurisdictions were covered by the book.
For those interested in medical and family law matters, this is still a book worthy of a place on any bookshelf. For jurisdictions that remain unsure of whether to legislate, and/or how, or whether to reform existing practices, there are many lessons to learn from the permissive, tolerant and prohibitive jurisdictions described in this book.
Learning from others is beneficial if we can learn from mistakes as much as successes. Legal transplantation has always had its critics, with Kahn-Freund reminding us that transplantation, without an appreciation of the social and political context of the jurisdictions, is likely to fail. Finding an approach to the regulation of surrogacy is by no means an easy task. The Law Commissions' current consultation period on surrogacy continues the search for the perfect regulatory model within our national borders. The Hague Convention on Private International Law has the unenviable task of attempting to find a more universal solution through an international instrument.
Acknowledging changing times, the need for legal certainty and the protection of the rights of the child are all arguments that should navigate legislators towards a solution of regulation rather than prohibition – but therein lies the rub. Regulation is by far much harder to achieve than doing nothing.
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