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Human Rights Implications of Global Surrogacy

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Human Rights Implications of Global Surrogacy University of Chicago Law School Chicago Unbound Global Human Rights Clinic 2019 Human Rights Implications of Global Surrogacy University of Chicago Law School - Global Human Rights Clinic UniversityofChicagoLawSchoolGlobalHumanRightsClinic@chicagounbound.edu Follow this and additional works at: https://chicagounbound.uchicago.edu/ihrc Part of the Law Commons Recommended Citation University of Chicago Law School - Global Human Rights Clinic, "Human Rights Implications of Global Surrogacy" (2019). Global Human Rights Clinic. 10. https://chicagounbound.uchicago.edu/ihrc/10 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Global Human Rights Clinic by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. HUMA N RIGHTS IMPLICATIONS OF GLOBAL SURROGACY A report by The International Human Rights Clinic of the University of Chicago Law School, submitted to the UN Office of the High Commissioner for Human Rights in order to contribute to on-going work on human rights and global surrogacy. Copyright © 2019 International Human Rights Clinic All rights reserved. ISBN 978-1-7334730-0-2 University of Chicago Law School Mandel Legal Aid Clinic 6020 South University Avenue Chicago, Illinois 60637 https://www.law.uchicago.edu/ihrc HUMAN RIGHTS IMPLICATIONS OF GLOBAL SURROGACY The International Human Rights Clinic of the University of Chicago Law School1 TABLE OF CONTENTS I. Introduction and Methodology .......................................................................................................................... 5 II. Overview of Surrogacy ........................................................................................................................................ 7 A. Background .................................................................................................................................................. 7 B. Surrogacy Practices and Arrangements ....................................................................................................... 8 C. Perspectives on Altruistic and Commercial Surrogacy ............................................................................... 11 D. Empirical Accounts of Surrogacy ................................................................................................................ 12 E. Global Commercial Surrogacy Developments and Trends ......................................................................... 13 III. The International Human Rights Framework .................................................................................................... 15 A. Surrogacy as a per se violation of human rights ........................................................................................ 16 1. Sale of children .................................................................................................................................. 16 2. Trafficking of women and children .................................................................................................... 18 3. Forced labor ...................................................................................................................................... 19 B. Rights of women ........................................................................................................................................ 20 1. Reproductive rights, health and bodily autonomy ............................................................................ 20 2. Non-Discrimination and a woman’s right to equal protection .......................................................... 21 1 This report was researched and authored by the International Human Rights Clinic during the academic year 2018- 2019, and was submitted to the U.N. Office of the High Commissioner for Human Rights in order to contribute to on- going work on human rights and global surrogacy by a team of graduate students in law and law faculty of the University of Chicago Law School. The research and drafting team included the following members: Alexa Rollins, Kelly Geddes, Marcela Barba, and Marie Umbach (student authors); Claudia Flores, Associate Clinical Professor of Law, and Nino Guruli, Lecturer (faculty authors). The report was also edited by Elizabeth Lindberg, Legal Assistant. This report represents the views and perspectives of the authors based on research conducted and is not an institutional position of the University of Chicago Law School. 2 3. Labor rights and just and favorable working conditions ................................................................... 22 C. Rights of children ....................................................................................................................................... 23 1. The best interests of the child ........................................................................................................... 23 2. Right to citizenship and identity ........................................................................................................ 25 D. Rights and interests of intended parent(s) ................................................................................................ 26 1. Discrimination in the enjoyment of reproductive freedom .............................................................. 26 IV. Cambodia Case Study........................................................................................................................................ 27 A. Background ................................................................................................................................................ 27 B. Cambodian Context .................................................................................................................................... 27 C. Practice of Surrogacy in Cambodia ............................................................................................................ 29 1. The Growth of Surrogacy in Cambodia ............................................................................................. 29 2. Cambodia’s Ban on Surrogacy ........................................................................................................... 29 3. Criminal Prosecution of Surrogates and Agencies ............................................................................. 30 4. Surrogate Women Interviewed ......................................................................................................... 31 5. Cambodia’s Draft Surrogacy Law ....................................................................................................... 34 V. Considerations for the Regulation of Surrogacy Globally ................................................................................. 36 A. Contextualizing Surrogacy Risks ................................................................................................................. 36 1. Rights promoted by surrogacy .......................................................................................................... 37 2. Risks of alternative work ................................................................................................................... 37 3. Risks of Surrogacy Restrictions .......................................................................................................... 39 B. Factors to Consider when Regulating Surrogacy........................................................................................ 40 1. Legal Framework ............................................................................................................................... 41 2. Institutional Capacity to Enforce Law ................................................................................................ 49 3. Health Care ........................................................................................................................................ 51 4. Societal Considerations ..................................................................................................................... 52 5. Economic Considerations .................................................................................................................. 57 6. Historic Violations ............................................................................................................................. 58 3 C. Risks and Opportunities of Surrogacy’s Transnationality........................................................................... 59 1. Limited control of surrogacy ............................................................................................................. 59 2. Opportunities arising from transnational structure .......................................................................... 60 VI. Policy Recommendations .................................................................................................................................. 60 A. Legalization of Surrogacy: Bans and/or Restrictions .................................................................................. 61 B. Scope of Surrogacy: Transnational and/or Domestic ................................................................................. 63 C. Compensation: Commercial and/or Altruistic Surrogacy ........................................................................... 64 D. Regulatory Protections: Intermediaries, Surrogates, Children and Intended parent(s) ...........................
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