Research Handbook on Surrogacy and the Law. Edited by Katarina Trimmings, Sharon Shakargy, and Claire Ahmad.

I. The aim and scope of the book

Surrogate, surrogate mother, gestational surrogate, gestational carrier, birth mother: these are examples of how an individual with a womb, a woman or a transman, engaged in a surrogacy arrangement as the carrier of a child is called in the ‘Research Handbook on Surrogacy and the Law’. This number of words and concepts gives us a first glimpse into how complex the issue of surrogacy is. Drawing on the previous academic work on the legal regulation of surrogacy, the editors of this book, Katarina Trimmings, Sharon Shakargy and Claire Ahmad (‘Chapter 1 ‘Surrogacy and the law: an introduction’, p 1), set an ambitious goal “to offer the reader a full introduction to surrogacy law, by engaging with surrogacy through a plethora not only of jurisdictional perspectives but of intra-legal perspectives as well. It contains contributions from legal scholars (both senior and junior) from across the globe, and seeks to provide a scholarly, state of the art overview of research and the scope of current thinking in the field”. The expressed aim here is that the Handbook takes the evaluation of surrogacy to the ‘next level’. As is usually the case in legal literature, the Handbook mentions a variety of potential readers: academics, practitioners, policymakers, as well as undergraduate and postgraduate students.

There are certain common nominators in chapters of the Handbook. As highlighted throughout the Handbook, the story of surrogacy is very much a story about ‘reproflows’—the transnational movement of gametes, embryos, reproductive labour, and reproductive travellers.¹ The issue of human rights is strongly tied to the subject matter and thus, inherently present in many contributions in the Handbook. The regulation of surrogacy is handled through the classification of prohibitive, tolerant, regulatory, and free market approaches.² The Handbook also provides sources to readers interested in comparative (family) law more generally, as many of the authors approach topics from the perspective of a specific jurisdiction. It provides basic information to understand legal solutions adopted in jurisdictions less familiar to a Western lawyer. Furthermore, in a very welcome way, many contributions of the Handbook draw on empirical knowledge of surrogacy, which strengthens their argumentation.

The Handbook includes an introduction (Chapter 1) and four parts (Chapters 2–26). The substantive content is classified into: Part I ‘Surrogacy and Rights’, Part II ‘Interface between Surrogacy and Different Areas of Law’, Part III ‘Cross-border Dimensions’, and Part IV Regional Perspectives’. One issue after reading the Handbook was whether ‘Cross-border Dimensions’ needed a separate part as its content could feasibly fit into other Parts. Further, the whole book illuminates, both explicitly and implicitly, how surrogacy is a very global phenomenon and cannot be handled or comprehended only in the domestic context.

At the beginning of the book, one can find ‘Contents’ and at the end, a short ‘Index’. What else should the book include? Perhaps a short list of the most significant case law? In the Handbook, several authors refer, for example, to the landmark cases of Mennesson v. France (No. 65192/11) in the European Court of Human Rights and Calvert v. Johnson handled by the Californian Supreme Court. One may of course argue that this is not an issue if one reads the electronic version and uses ‘Finder’. However, listing the cases would have made it easier to get an overview of the most significant case law and would have highlighted its importance to a reader unfamiliar with the field. In a similar vein, it would have been useful from the reader’s perspective if the most important normative sources had been listed and abbreviated coherently. As highlighted by various chapters of the Handbook, these are, inter alia, the UN Convention on the Rights of the Children (UNCRC); the Convention on the Elimination of All Forms of Discrimination against Women New York (CEDAW); Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption; and Verona principles for the protection of the rights of the child born through surrogacy.

Finally, taking into consideration the complexity and delicate nature of the theme, as well as the magnitude of the Handbook, it is understandable that the terminology used in the contributions is not harmonized. However, a short glossary explaining the basic mechanisms of relevant assisted reproduction technologies (ARTs), such as IVF, traditional surrogacy, and gestational surrogacy, would have been welcomed as, again, the Handbook was written for a wide range of readers. These concepts are sometimes explained depending on the individual author and, to some extent, there is repetition in this regard. It could also be considered a matter of luck whether a reader not familiar with the field happens to be interested in a chapter containing this relevant information.

II. Core issues covered by the Handbook

It is obviously unrealistic to try to tackle all the issues covered by the Handbook, as it is over 500 pages and authors and their contributions should also be properly credited in this short review. Hence, in the following, I summarize their content very briefly. I also intend to bring out the most important lessons that can be drawn from the Handbook. As highlighted by the Handbook, the issue of surrogacy encompasses issue-areas ranging from, among others, the best interests of the child, high risks for the individuals involved, global inequalities, and equal opportunities to build a family (despite biological deficiencies/differences or sexual orientation) to differences between legal systems with respect to the formation of parenthood. In surrogacy arrangements, at issue are the best interests of the child, the wishes and expectations relating to being and becoming a parent, and the circumvention of domestic rules.

1. The best interests of the child

The best interests of the child are a primary consideration in issues of surrogacy, as underlined throughout the Handbook. The most evident and visible issue in this respect is how a legal system regulates, or otherwise handles, the establishment of the parent–child relationship between the surrogate-born child and their intending parents. Among others, Michael Wells-Greco (‘Nationality and immigration obstacles in cross-border surrogacy arrangements’, p. 319) elaborates on the vulnerable situations in which surrogate-born children may end up due to challenges caused by their limping status. Alina Tryfonidou (‘Surrogacy in the ECtHR and the European Institutions’, p. 151) explains how the Council of Europe, under which the ECtHR also operates, as well as the European Union, struggle in many ways to balance the best interests of children with their overall reluctance to accept or even tolerate surrogacy arrangements.

However, the establishment of a parent–child relationship is not the only relevant issue when assessing the principle of the best interests of the child in the context of surrogacy arrangements. David Smolin and Maud de Boer-Buquicchio (‘Surrogacy, intermediaries, and the sale of children’, p. 282) justify why some prevailing surrogacy practices may constitute the sale of children. Mia Dambach and Nigel Cantwell (‘Child’s right to identity in surrogacy’, p. 109) underline how the current laws and practices in many jurisdictions do not support the right of children to know their origins.

2. Wills, desires, possibilities, and vulnerabilities of adults involved

Building a family by means of surrogacy may be the only option for infertile couples, same-sex couples, or single individuals. Among others, Vanessa Gruben, Stefanie Carsley, and Alicia Czarnowski (‘Surrogacy, feminism and LGBTQ2S+ family building’, p. 169) highlight that the issue of surrogacy should also be evaluated in the context of the right to non-discrimination. This approach and reasoning are very present in discussions and legal reforms taking place in legal systems. For instance, Sital Kalantry (‘Surrogacy in the United States: from prohibition to permission’, p. 436) opens up the surrogacy debate in the USA and uses as an example the state of New York where, among others, LGBTQ+ organizations lobbied strongly in favour of or the legalization of surrogacy.

Another major issue handled in the Handbook is whether surrogacy should be conceptualized as work in the scope of a woman’s right to make a living in whichever manner she chooses. Nensi Sinanaj (‘Surrogacy and discrimination’, p. 130) calls for women’s rights to exercise their contractual freedom. She reasons that surrogacy arrangements can potentially empower women and increase their status in society by providing a job that is less risky and more enjoyable than other jobs they may be forced to take. Kimberly Mutcherson (‘Surrogacy and global justice’, p. 24) argues, by using the lens of reproductive justice as a framework, that an intersectional approach is crucial. Human rights norms and concerns must be stressed, and the voices of surrogates in high-risk situations must be embraced. Yasmin Ergas (‘International human rights law and the rights of women in reproductive surrogacy: between principle and pragmatism’, p. 187) reminds us that the prohibition of surrogacy by invalidating contracts for compensated surrogacy easily leaves the most vulnerable individuals (surrogates and surrogate-born children) stranded on the markets.

3. Different areas of law

As is very well highlighted by Part IV ‘Regional approaches to surrogacy’, which provides knowledge and comparisons on different legal systems around the world, it is very much up to a particular jurisdiction to what extent it approaches the issue of surrogacy as a matter of belonging to scope of medical law, contract law, family law, and/or criminal law. My favourite part of the book focuses on understanding surrogacy from the perspective of these different legal fields. Part II “Interface between ‘Surrogacy and Different Areas of Law’ provides particularly novel approaches to surrogacy discussion.

Annick Masselot and Martha Ceballo (‘Surrogacy and employment law’, p. 223) write that pregnancy and parenthood rights provided by employment law, among other motherhood allowances, are designed to address a situation of natural procreation: A worker carries and gives birth to the child and also takes care of the newborn. Brian H. Bix (‘Surrogacy and contract law’, p. 207), drawing on the situation in the United States, pays attention to the fact that many controversial terms frequently used in surrogacy contracts cannot be invoked in the court room. Legally unenforceable terms may, however, enhance the parties’ understanding of what they want and need from one another. Malcolm Smith, Jayne Hewitt, and Patricia Fronek (‘Surrogacy and bioethics’, p. 263) reason how there is a lack of information, disclosure, and failures to ensure that parties involved in cross-border commercial surrogacy arrangements fully understand the implications of their decisions. They underline that the principle of informed consent should be extended to all equally, regardless of socioeconomic circumstances or geographic location. Finally, Ilona Cairns and Molly O’Donoghue (‘Surrogacy and criminal law’, p. 240) analyse core principles of criminalization, the harm principle, legal paternalism, and legal moralism, and argue that these core principles fail to provide a basis for criminally sanctioning either altruistic or commercial surrogacy.

4. Domestic laws in flux and cross-border issues

The Handbook illuminates how, in many legal systems, the law covering surrogacy is in flux. Some of the authors seem to approach the phenomenon of surrogacy more positively than others, but practically all authors argue that the only way to tackle the problems related to surrogacy is with regulation. However, due to the complexity and variety of, for example, societal, political, ethical, and commercial interests and issues involved, legislators in different jurisdictions adopt very different approaches towards surrogacy. The legal development is anything but straight-forward.

Mary Keyes (‘Surrogacy in the Anglo world: the UK, Australia, Canada and New Zealand, p. 376) compares similarities and differences in Anglo-American jurisdictions where the regulation of surrogacy has recently been dynamic. As Keys explains, in particular, commercial surrogacy arrangements are subjected to criminal sanctions that are, however, not used in practice. Voices have been raised to support the idea of lifting criminalization and putting greater emphasis on the parties’ intentions and the best interests of the child. On the other hand, approaches towards surrogacy may have tightened elsewhere. In particular, surrogacy services for foreign clients have been banned in many previously important sending jurisdictions such as Cambodia, India, and Thailand, as demonstrated by Elizabeth H. Aguiling-Pangalangan (‘Surrogacy in Asia’, p. 395). In addition, Olga A. Khazova (‘Recent changes in Russian law on surrogacy in the Eastern European context’, p. 353) explains how, after recent legislative changes, Russia cannot no longer be considered a ‘free-market jurisdiction’.

The need for comprehensive domestic regulation is called for in many contributions. Challenges and problems caused by current laws and practices are set forth, for example, in Nieve Rubaja (‘Surrogacy in South America’, p. 453) and Andrea Bücler and Arazoo Sang Bastian (‘Gestational Surrogacy in Muslim-majority states’, p. 475). Both contributions vividly underline how the non-regulation of ARTs and the formation of parenthood under surrogacy arrangements do not serve the interests of surrogates. However, as Unaisi Narawa (‘Surrogacy in Pacific’, p. 491) also highlights, there are no default solutions that could apply to every jurisdiction. Consideration must be given to culture, traditions, and religion when handling a topic such as surrogacy that is controversial and divisive in nature. Otherwise, there is a risk of counterreaction that may in fact deprive people who the regulation aims to protect of their rights, as the promotion of same-sex marriages in Pacific region indicated.

Finally, an important issue covered in the Handbook is ‘legal tourism’. It may be that surrogacy arrangements are prohibited domestically, but there is hardly a way to impede intending parents from entering a surrogacy arrangement abroad. Cristina Gonzales-Beilfuss (‘Western European approaches to surrogacy’, p. 339) demands Western European legislators take responsibility for the phenomenon and the actions of their citizens abroad. She argues that they should explore the possibility of giving preferential treatment to surrogacy arrangements taking place under certain minimal ethical standards accepted by both sending and receiving jurisdictions in an international convention. Regulatory choices to address parenthood issues stemming from cross-border arrangements are analysed by Laura Martinez-Mora (‘Surrogacy and the Hague Conference on Private International Law’, p. 295), who provides an overview of the work of the HCCH on the issue. Interesting aspects to questions of jurisdictions and choice of law are covered by one of the editors Sharon Shakargy in her contribution (‘Surrogacy and private international law’, 282).

III. Conclusions

After reading the Research Handbook, one cannot help but feel overwhelmed. This is, of course, a compliment. As such, the Handbook reaches its goal of providing a multifaceted exploration of surrogacy and analysing a variety of issues, among others, family relations, global inequalities, and genetics. One must argue that the only thing that is really clear about surrogacy is that it leads to a very complex web of ethical, legal, and societal questions and dilemmas. The Handbook serves as a comprehensive attempt to shed light on this complex web and untangle the variety of issues that characterize it. It offers a robust reading package and a valuable snapshot of current thinking in this area. It also stands as a reminder of how many different legal fields we, in fact, must evaluate when the legal aspects of surrogacy are under scrutiny.

As we are dealing with an evolving issue, I conclude by raising three questions that particularly struck me after reading the Handbook and considering which topics I would like to read more about. What is the role of epigenetics in the genetic heritance of the child and how should it affect legal framework, if at all (Nola Cammu and Machteld Vonk, ‘The significance of genetics in the surrogacy’, p. 8)? What rights to do unborn and future children have and how should their rights and interests be approached when regulating ARTs (Clare Fenton-Glynn, ‘Surrogacy and ‘the best interest principle’, p. 40)? What kind of statuses do fertility and childbearing have in different societies and how does different understanding affect the level of legal solutions (Julia Sloth-Nielsen, Surrogacy in Africa, p. 503)?

Footnotes