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A Public International Law approach to safeguard nationality for surrogate-born children

Published online by Cambridge University Press:  02 January 2018

Bríd Ní Ghráinne  and
Aisling McMahon
Bríd Ní Ghráinne
Affiliation:
School of Law, The University of Sheffield, Western Bank, Sheffield S10 2TN, UK. Email: B.A.NiGhrainne@sheffield.ac.uk
Aisling McMahon
Affiliation:
Newcastle Law School, Newcastle University, Newcastle upon Tyne NE1 7RU, UK. Email: aisling.mcmahon@ncl.ac.uk
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Abstract

International surrogacy agreements involve a child born to a surrogate mother who is of a different nationality to the commissioning parent(s) in a state other than that of which the commissioning parent(s) are nationals or reside. Many of these arrangements lead to children being born stateless, which deprives that child of many rights that are directly linked to one's nationality as well as causing significant practical problems, such as difficulty in obtaining a passport. In undertaking the first Public International Law analysis of nationality and international surrogacy agreements, we map out how various provisions can be used to guarantee protections against statelessness. Accordingly, we argue that the drafting of a proposed new convention is not the ideal solution in this respect, and should not be to the detriment of the ratification and implementation of the relevant conventions that we identify; in particular, the 1989 Convention on the Rights of the Child. We argue that these protections offer the most meaningful protection in the short term and should be used to inform any future protections under the proposed Convention. We conclude by encouraging the advancement of Public International Law arguments when petitioning in a domestic context on behalf of stateless international surrogate children.

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 2 , June 2017 , pp. 324 - 342
Copyright
Copyright © Society of Legal Scholars 2017

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References

1. Commissioning parent(s) refers to the person(s) who have asked the surrogate to carry a child for them, with the intention that the child will be handed over after birth to their care and will be raised by the commissioning parent(s).

2. 1954 Convention Relating to the Status of Stateless Persons 360 UNTS 117, Art 1(1).

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4. Ibid.

5. Mennesson v France, application no 65192/11, 26 June 2014; Labassee v France, application no 65941/11, 26 June 2014

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11. RF Sturrow ‘Surrogacy: American style’ in Gerber and O'Byrne, above n 6, p 209.

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13. In some jurisdictions, altruistic surrogacy is legal but commercial surrogacy is prohibited.

14. See generally, Hague Conference on Private International Law (HCCH), Permanent Bureau Private International Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements (March 2011), available at http://www.hcch.net/upload/wop/genaff2011pd11e.pdf (accessed 11 February 2016).

15. Hague Conference on Private International Law A Preliminary Report on Issues arising from International Surrogacy (March 2012), available at http://www.hcch.net/upload/wop/gap2012pd10en.pdf, para. 2 (accessed 11 February 2016). It has also been recognised that surrogacy is increasing within the EU: see EU Parliament Committee on Legal Affairs A Comparative Study on the Regime of Surrogacy in EU Member States (2013), available at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf (accessed 11 February 2016) para 5.1.

16. Ibid, para 6.

17. Ibid.

18. More than two states may be involved, as noted, eg if donor gamete(s) from a third jurisdiction is used. Ibid.

19. See Government of India Ministry for Home Affairs, Circular No 462 ‘Foreign Nationals including Overseas Citizens of India (OCI) cardholders] seeking to visit India for commissioning surrogacy’ (3 November 2015), which directed that India Missions/Posts/FRROs/FROs were to ensure that no visas would be issued to foreign nationals or permissions granted to OCIs to commission surrogacy in India. It also directed that no exit permission be given to children born through surrogacy in India to foreign nationals, including OCI cardholders. However, in cases of children born through surrogacy already commissioned before the circular was issued, exit permission would be decided on a case-by-case basis by FRROs/FROs. This information is based on the position at the time of writing (21 June 2016). Nepal introduced a similar ban on surrogacy, which included a ban for foreign nationals or arrangements initiated outside Nepal, on 18 September 2015; see http://nepal.usembassy.gov/service/surrogacy-in-nepal.html (accessed 11 February 2016).

20. It has been argued that a global ban on commercial surrogacy would probably result in a black market for surrogacy, which could increase the potential for exploitation. See Trimmings, K and Beaumont, P International Surrogacy Arrangements: Legal Regulation at the International Level (Oxford: Hart Publishing, 2013) p 442 Google Scholar.

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22. See C Becker ‘Jus soli: a miraculous solution to prevent statelessness?’(9 April 2015), available at http://www.statelessness.eu/blog/jus-soli-miraculous-solution-prevent-statelessness (accessed 11 February 2016).

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24. Hague Conference, above n 14, p 9.

25. [2008] EWHC 3030 (Fam).

26. Section 33 HFEA 2008, For discussion, see UK Visas and Immigration, Surrogacy (June 2010), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/258243/surrogacy.pdf (accessed 11 February 2016). For the definition of parent for nationality purposes, see British Nationality (Proof of Paternity) Regulations 2006; see generally, UK Border Agency Inter-Country Surrogacy and Immigration Rules, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/261435/Intercountry-surrogacy-leaflet.pdf (accessed 11 February 2016) para 34.

27. Section 28 HFEA, 1990; s 38 HFEA 2008.

28. [2008] EWHC 3030 (Fam), paras 5–6.

29. Ibid, para 8.

30. Ibid, para 10.

31. Section 54 Human Fertilisation and Embryology Act 2008. This allows for the transfer of legal parentage in cases of surrogacy subject to a number of conditions in the UK context, and avoids couples having to apply to adopt a child, which was happening previously.

32. Section 1(5) British Nationality Act 1981. Since 2010, if a parental order is granted a surrogate child automatically becomes a British national, but this would not have been automatic at the time of the case.

33. Trimmings and Beaumont, above n 20, p 508.

34. C Kindregan and D White ‘International fertility tourism: the potential for stateless children in cross-border commercial surrogacy arrangements’ (2013) Suffolk Transnat'l L Rev 527–626 at 548.

35. There will be exceptions to this, such as the case of Baby Gammy, whose Thai surrogate decided to raise him after the commissioning parents refused to. Subsequently, she successfully petitioned – amidst much international media coverage – on behalf of the child for Australian citizenship See ‘Baby Gammy granted Australian citizenship’ BBC News (20 January 2015), available at http://www.bbc.co.uk/news/world-australia-30892258 (accessed 11 February 2016).

36. Y Ergas ‘Babies without borders: human rights, human dignity, and the regulation of international commercial surrogacy’ (2013) 27 Emory Int'l L Rev 117; K Trimmings and P Beaumount ‘International surrogacy arrangements: an urgent need for legal regulation at the international level’ 7 J Private Int'l L 627; Trimmings and Beaumount, above n 20.

37. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, 19 January 1984, Inter-Am Ct HR (Ser A) No 4 (1984), at [32]–[35].

38. Nottebohm Case (second phase), Judgment of 6 April 1955, ICJ Reports 1955, p 4. See also the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Law 179 LNTS 89; Art 1 provides that ‘it is for each state to determine under its own laws who are its nationals. This shall be recognised by other states in so far as it is consistent with international conventions, international custom, and the principles of international law generally recognised with regard to nationality.’

39. Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).

40. See Weis, above n 3, at 1074–1075. An argument could be made that Art 15 is part of Customary International Law. For example, the Inter-American Court of Human Rights has referred to Art 15 of the UDHR as supporting its conclusion that ‘[t]he right of every human being to a nationality has been recognized as such by international law’. See Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, 19 January 1984, Inter-Am Ct HR (Ser A) No 4 (1984), at [33].

41. 1961 Convention on the Reduction of Statelessness, 989 UNTS 175.

42. Ibid, Art 2(b).

43. The meaning of ‘parent’ is discussed below.

44. The first baby born via in vitro fertilisation was Louise Brown, born in 1978; see A Eley ‘How has IVF developed since the first “test-tube baby”’? BBC News (23 July 2015), available at http://www.bbc.co.uk/news/health-33599353 (accessed 11 February 2016).

45. 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, Art 31(1).

46. Preamble, 1961 Convention on the Reduction of Statelessness, 989 UNTS 175. The preamble forms part of the Convention's context, in accordance with 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, Art 31(2).

47. Dispute Regarding Navigational and Related Rights, Costa Rica v Nicaragua, Judgment, ICJ Reports 2009, p 213, at [64].

48. Ukraine is party to the Convention as of 25 March 2013. It is unclear whether the numbers of international surrogate children born in India and Thailand will reduce following the recent criminalisation of international surrogacy arrangements in these jurisdictions.

49. There does not seem to be significant state practice or opinio juris to the effect that Art 4 represents customary international law. Therefore Art 4 is only binding on States Parties to the CRS.

50. UNGA Res 3274 [XXIX] [10 December 1974]; UNGA Res 31/36 [30 November 1976].

51. 1966 International Covenant on Civil and Political Rights 999 UNTS 171.

52. Office of the High Commissioner for Human Rights ‘General comment no. 17: rights of the child (Art. 24): 07/04/89’, at [8]. During the course of drafting, the original proposal of Art 24(3) provided that ‘The child shall be entitled from his birth to … a nationality.’ During the ensuing debate, the word ‘acquire’ was inserted and the words ‘from his birth’ were deleted. According to Detrick, these amendments were made because the majority felt that a state could not assume an unqualified obligation to afford its nationality to every child born on its territory regardless of the circumstances.

53. S Detrick A Commentary on the United Nations Convention on the Rights of the Child (The Hague: Martinus Nijhoff, 1999) p 150.

54. (1998) UN Doc CCPR/C/79/Add 92; (1997) UN Doc CCPR/C/79/Add 76; (1998) UN Doc CCPR/C/79/Add 89.

55. 1989 Convention on the Rights of the Child 1577 UNTS 3. The USA and Somalia are the only UN members that are not States Parties to the CRC.

56. D Hodgson ‘The international legal protection of the child's right to a legal identity and the problem of statelessness’ (1997) 7 Int'l J L & Fam 255; JE Doek ‘The CRC and the right to acquire and to preserve a nationality’ (2006) 25(3) Refugee Surv Q 26.

57. 1989 Convention on the Rights of the Child 1577 UNTS 3, Art 2; Detrick, above n 53, p 69.

58. UN Doc E/CN.4/1349, p 3.

59. Detrick, above n 53, p 71.

60. See eg Al-Jedda v United Kingdom, application no 27021/08, 7 July 2011; Hirsi Jamaa and Others v Italy, application no 27765/09, 23 February 2012.

61. Detrick, above n 53, pp 68–69.

62. 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, Art 31(1).

63. This principle provides that the objective of treaty interpretation is to advance the aims of that treaty. See Gardiner, RK Treaty Interpretation (Oxford: Oxford University Press, 2008) p 190 Google Scholar.

64. States can also submit a declaration pursuant to Art 12 that they recognise the competence of the Committee to receive inter-state complaints.

65. UN General Assembly ‘Optional Protocol to the Convention on the Rights of a Child on a Communications Procedure’ (19 December 2011).

66. 1955 European Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221.

67. Mennesson v France, application no 65192/11, 26 June 2014; Labassee v France, application no 65941/11, 26 June 2014. See G Puppinck and C de La Hogue ‘ECHR: towards the liberarisation of surrogacy’, English translation of an original study published in French in (2004) 118 Revue Lamy de Droit Civil 78.

68. The child in question was not stateless; however, the concept of a ‘family link’ may be relevant in future cases, where such a link must be established for the purposes of granting nationality.

69. This refers to space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the ECtHR.

70. See generally, Hague Conference on Private International Law The Parentage/Surrogacy Project: An Updating Note (February 2015), available at http://www.hcch.net/upload/wop/gap2015pd03a_en.pdf (accessed 11 February 2016) p 8.

71. Ibid. See the German Bundesgerichtshof, decision of 10 December 2014 (No XII ZB 463/13), which held in favour for the recognition in Germany of a California judgment recognising two intending fathers as the parents of a child born through surrogacy;

72. ‘Jurisdiction’ may also include acts carried out extraterritorially, but this is not relevant in the context of this paper.

73. See eg Soering v United Kingdom, application no 14038/88, 7 July 1989.

74. The ECHR may nevertheless provide protection to children born in the Ukraine and Russia, where many ISAs are carried out.

75. Paradiso et Campanelli c Italie, application no 25358/12, 27 January 2015.

76. At [15]. This is the authors' translation from the French judgment.

77. Ergas, above n 36; Trimmings and Beaumount, above n 20; Trimmings and Beaumount, above n 36.

78. UN General Assembly ‘International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families’ Res A/RES/45/158, 18 December 1990.

79. Human Rights Watch ‘Migrant workers need protection: UN treaty comes into force’, Press Release (30 June 2003), available at https://www.hrw.org/news/2003/06/30/migrant-workers-need-protection (accessed 11 February 2016).

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83. Parry, above n 80, at 37.

84. Ibid.

85. 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, Art 27.

86. UNHCR ‘Good practices paper: acceding to the UN Statelessness Conventions’ (2014).

87. Laborie c France, application no 44024/13, 16 January 2015.

88. Foulon c France, application no 9063/14, 24 January 2014.

89. Bouvet c France, application no 10410/14, 29 January 2014.

90. Denza, E ‘The relationship between international and national law’, in Evans, MD (ed) International Law (Oxford: Oxford University Press, 2nd edn, 2006) p 428 Google Scholar.

91. Ibid, p 429.

92. 1951 Convention Relating to the Status of Refugees 189 UNTS 137.

93. Horvath v Secretary of State for the Home Department [2000] UKHL 37.

94. Ergas, ‘Thinking “through” human rights: the need for a human rights perspective with respect to the regulation of cross-border reproductive surrogacy’, in Trimmings and Beaumont, above n 20, pp 427–439 at p 430.

95. Joined cases C-402/05 P & C-4015/05 P, Yassar Abdulla Kadi & Al Bakaraat International Foundation & Council of the European Union and EC Commission [2008] ECR I-6351.

96. Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226.

97. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 131. Although both the Nuclear Weapons and Wall Advisory Opinions were dealing with the overlap between International Humanitarian Law and International Human Rights Law in situations of armed conflict, the principle is generalizable as such that International Human Rights Law will be applicable unless excluded by derogation or the application of lex specialis.