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Journal of Law and Policy

Abstract

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science, and commerce. These two cases exemplified the debate regarding domestic surrogacy—a debate that has now been raging for decades. A new ethical and legal debate has emerged concerning international surrogacy agreements. One aspect of this debate, which I will explore in this Article, is that international surrogacy requires a more robust regulatory regime. I will articulate a variety of solutions to effectuate this regulatory regime and will enumerate the advantages and disadvantages of these solutions. Against this background, I propose a Hague international convention to regulate international surrogacy agreements, similar to the existing Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption. Notwithstanding my support for a Hague convention, this alone will be insufficient to address some of the issues raised by international surrogacy. Therefore, domestic regulation similar to the proposed 2010 Indian Assisted Reproductive Technology (Regulation) Bill and Rules or Israel’s 2012 expert committee recommendations and 2014 proposed regulation should be implemented.