Institute for the Study of Human Rights, Columbia University
In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned, stateless and parentless.” States have tried to address the individual dramas through ad hoc solutions – issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic public policies. The inadequacy of such approaches has become increasingly evident. As a result, states have developed national legislation and, together with international institutions and civil society networks, begun to seek international agreements. Indeed, international coordination represents the only viable solution to the individual dramas and diplomatic crises that have characterized the market in international commercial surrogacy. But will that be possible? This article explores whether and to what extent, a coordinated approach is likely to be found, and the role and limits of international law.