Babies without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy
![handle is hein.journals/emint27 and id is 123 raw text is: BABIES WITHOUT BORDERS: HUMAN RIGHTS, HUMAN
DIGNITY, AND THE REGULATION OF INTERNATIONAL
COMMERCIAL SURROGACY
Yasmine Ergas*
ABSTRACT
In recent decades, a robust international market in commercial
reproductive surrogacy has emerged. But, as German citizens Jan Balaz and
Susan Lohle discovered when they struggled to engineer the last-minute
diplomatic compromise that saved their commissioned twins from becoming
wards of the Indian state, conflicts among legal frameworks have placed the
children born at risk of being marooned stateless and parentless. States
have tried to address individual dramas through ad hoc solutions-issuing
emergency entry documents for children caught at borders or compelling
administrative authorities to recognize birth certificates related to surrogacy
arrangements that run counter to domestic public policies, and judges have
attempted to craft doctrines that inevitably-and necessarily-correspond to
the specificities of the cases before and their own legal systems. But the
inadequacy of such approaches has become increasingly evident. As a result,
states have developed national legislation and, together with international
institutions and civil society networks, begun to seek international agreements.
Indeed, international coordination represents the only viable solution to the
individual dramas and diplomatic crises that have characterized the market in
international commercial surrogacy. But will that be possible? This Article
* School of International and Public Affairs and Institute for the Study of Human Rights, Columbia
University. Numerous colleagues have provided a sounding board, and sound advice, for this Article. Special
thanks are due to Jose Alvarez, George Bermann, Danielle Celermajer, Michael Doyle, Henry Ergas, Ira
Katznelson, Claire Kelly, Kenneth Prewitt, Jack Snyder and Celia Wasserstein Fassberg, Thanks are also due
to participants in the seminars and workshops at which I have discussed earlier versions of this article
including the Institut Emilie du Chatelet in Paris, the University of Sydney, Erasmus University Rotterdam, the
Columbia University Human Rights Seminar, the International Law Association, and the Columbia University
workshop on Deconstructing and Reconstructing 'Mother.' I have also benefited from conversations with
William Duncan, Louise Teitz, and Hannah Baker of the Hague Conference on Private International Law, Lisa
Vogel of the U.S. State Department, and Katherine Franke, Suzanne Goldberg, Alice Kesssler-Harris, Carol
Sanger, and Elizabeth Scott at Columbia University. Invaluable research assistance was provided by Jenny
Leon, Caroline Risacher, and Marta Gamelo. Finally, this essay could not have been wTitten without the help,
comments and support of Leonard Groopman and Sofia Groopman.
Re X & Y (Foreign Surrogacy), [2008] EWHC (Fam) 3030 [10] (Eng.).](ViewImageLocal?handle=hein.journals/emint27&div=8&collection=&method=preview&ext=.png&size=3)
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Babies without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy
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