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ILSA Journal of International and Comparative Law

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Transnational surrogacy is becoming increasingly commercial, drawing on a wide range of domestic laws, including some notably lax domestic laws, and dramatically disparate economic circumstances, to create new families. Part I of this Article introduces the subject and explains why the domestic family laws of the participating states are inadequate to address it. Part II explains how international human rights law, especially three major human rights treaties: the International Covenant on Economic, Social and Cultural Rights (“ICESCR” or the “Economic Covenant”), the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or the “Women’s Convention”) and the Convention on the Rights of the Child (“CRC”) provides some useful guidelines.

While none of these treaties explicitly address surrogacy, they each address rights crucial in this context, including the right to health, the right to support, the right to know one’s origins, and the right to a family. The argument here is that, at the very least, where surrogacy is allowed, the protections of well-established human rights norms should be assured. In some cases, this may be accomplished through regulation or contractual provisions, such as the assurance for the gestational mother of free pre-natal care. In other cases, this may be more difficult, such as treatment for as yet unknown conditions that may result from the hormonal treatments necessary for surrogacy. If, for any reason, such assurances are impossible, surrogacy should be barred as a violation of human rights.



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