Legal Implications: Cross border assisted reproductive technologies
Laws and regulations are put into place with the goal to keep as many parties safe and to ensure fairness. When it comes to assisted reproductive technologies, the laws and regulations that restrict a person's access may cause them to seek fertility care in other countries. Some countries forbid individuals who are single men/women or same sex couples from using assisted reproductive technology. Other countries consider certain assisted reproductive technology such as surrogacy as illegal. Because of a person's home country's laws, they may choose to go to other countries for care which has been referred to as reproductive tourism, health tourism, or cross border assisted reproductive technologies. There are numerous successful cases of cross border assisted reproductive technologies; however, there are concerns such as exploitation, parentage views, and citizenship.
Some of the cited concerns of other countries that receive a high influx of fertility patients seeking treatment is the treatment of the women in that country. There have been cited incidents in which women are trafficked and forced to be surrogates with limited to no reimbursement or consent. Women may be exploited into surrogacy. Even with a small payment, would this be something this woman would have chosen otherwise? The countries with loose laws have people who find a money making opportunity exploiting both women in that country and those who are forced to seek fertility care in a country with lax laws.
Another concern is the fact that parentage views change from country to country. For some countries, the legal contract in which a surrogate relinquishes her parental rights and allows the intended parents to adopt their child is upheld. Whereas other countries, despite this contract, consider the legal mother to be the one who gives birth to the child, so if there is a surrogate used, she would be considered the legal mother of the child.
Citizenship further complicates the arrangement. There have been cases in which babies are in citizenship limbo, neither considered a citizen in the country they were born in nor in the country of their intended parents.
One example that demonstrates the possible concerns of cross border ART include one couple who connected with a surrogate in India. The couple was from Japan, and at the time of the arrangement were married. However, while the surrogate was pregnant, they underwent a divorce. The female partner did not want to raise the child the surrogate was carrying, yet the male partner did. He planned to raise the baby. However, since he was a single man at the time of the baby’s birth, India did not recognize his parentage and did not allow the baby to go home to him.
Another case is of an Australian couple whose surrogate lived in Thailand. The surrogate was pregnant with twins. The baby boy reportedly had Down syndrome. The intended parents asked the surrogate to selectively terminate the baby with Down syndrome, but the surrogate refused. The twins were born, and the couple took home the baby girl, leaving the baby boy in Thailand. There have been conflicting stories regarding this case such as the couple stating they were unable to take their baby boy home because of health concerns. Nevertheless, at the present state, the baby boy is not being raised by his intended parents rather, he is being raised by the surrogate.
Because of these devastating cases, efforts are being made to better regulate surrogacy and develop international agreements. Unfortunately, there are many families who have been negatively impacted by cross border ART. As always, it is important to work with clinics, providers, and attorneys closely to work through some of these concerns.
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* This blog constitutes general information about genetic testing and medical screening. This blog does not offer or provide medical advice or diagnosis, and nothing in this blog should be construed as medical advice or diagnosis. Do not rely on the information in this blog/article to make medical management decisions. Please consult with a medical professional before making those decisions. Do not delay in seeking professional medical advice if you think you have a medical concern. Do not disregard professional medical advice based on any information received in this blog.
