Problems of legal fictions related to surrogacy in cross-border situations

Abstract

The core of the study is the latest changes in some legal systems in the field of surrogate motherhood, as well as consequences and problems arising from this in global perspective. The authors indicate significant differences in the admissibility and content of surrogate motherhood and different trends in individual countries (non-recognizing, broadening, limiting, or prohibiting different legal solutions). As a consequence, they also signal the issue of recognizing effects of foreign procedures and registration of civil statuses or refusal of recognition, as well as problematic postulates to create common global regulation at the international level. The introduction of surrogate motherhood procedures in some states (including legal fictions of the child’s origin from the ordering person) may raise legal problems and dilemmas in other coutries, especially in situations of providing the child to personal constellations, in which the child cannot be conceived in genere (e. g. a single man or a homosexual couple). Some discussed legal solutions can be evaluated as implementing a “demand to obtain a child”, which is considered legitimate and binding by the state legal system. The problems from the foreign perspective concern not only the assessment of legal systems that provide for the above solutions, but also effective functioning of different national fundamental legal principles in related situations (in the past or present) with several legal systems (e. g. with a country’s citizens as well as permanent and temporary residents who had previously been abroad and took action on the basis of foreign law). Fundamental doubts may arise abroad as to the functioning of the universal principle of the prohibition of trafficking in human beings, the legal principles of adoption and rules concerning the child’s identity, as well as understanding by the states-parties of the treaties of the principle of the welfare and best interest of the child and the dignity of women (often coming from poor societies). Foreign concerns may also include the future functioning of the adoption system, because the interest in adopting orphans can be significantly less than the competitive ability to order a child via contract (including shaping its future physical characteristics). 

Keywords:

contract on civil status, surrogate motherhood, surrogate birth, surrogacy, prohibition of child trafficking, international adoption, unification of law in international scale, human dignity, maternity and paternity