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As a result, there are many problems regarding international commercial surrogacy, such as surrogacy rights and the lack of regulation that countries have for foreign commercial surrogacy. These issues have been highlighted in several media outlets that have attracted widespread attention, as well as in the opinions of non-governmental organizations that have emerged in society. The Sydney Morning Herald published an article „Indias Baby Farms“ on January 6, 2008, which describes the problems of surrogates in the context of commercial surrogacy abroad. „Critics say couples exploit poor women in India – a country with an alarming maternal mortality rate.“ This article draws public attention to the harmful effects of international commercial surrogacy on surrogate mothers. Currently, a non-profit human rights media organization has published an article entitled „Where do surrogates come from? Surrogacy as a violation of human rights“ on 27 February 2019 by Dr Renate Klein. Dr Klein calls surrogacy a „clear violation of human rights,“ referring to how surrogacy „violates a number of UN conventions.“ Klein, for example, refers to „surrogacy can be compared to slavery.“ He later supported his argument by stating that „Article 1 of the United Nations Slavery Convention defines the status or condition of a person over whom all or part of the powers associated with the right of ownership are exercised“. An example of a lack of regulation regarding commercial surrogacy is the story of „Baby Gammy“. The Conversation published on 5. In August 2014, an article titled „Baby Gammy Case reveals the dark side of commercial surrogacy“. This article highlights „how complex and tense surrogacy trade agreements can be“ compared to the „baby gammy“ story describing the damage caused by foreign surrogacy to surrogates and families. The parents of the Baby Grammys hired a Thai woman to have a baby on their behalf, but she became pregnant with twins and one of them suffered from Down syndrome. The commissioning parents told the surrogate to have an abortion, but for religious reasons, she did not.
The intended parents then left Thailand with only one twin and the surrogate mother stayed with baby gammy (baby with Down syndrome). This case shows the lack of regulation Australia has around international surrogacy. The media and NGOs have indeed exposed the lack of regulation and the rights of the surrogate mother. Adoption implies a postpartum conviction, and all this situation of conviction without a legal framework to ensure legal certainty, and the fact of doing so after the birth of the child, which means that necessarily a period of time elapses until filiation is determined in favor of the intended parents, leads to a series of violations of the different rights of children, who were born thanks to this technique. What if the future parents regret after the birth of the children? What happens if a child is born with malformations or diseases? What happens if the intended parents die, divorce or separate? What happens if the person who has no legal relationship dies and, for example, the child is deprived of the capacity to inherit? Or if the one who dies is the one who had a legal obligation and the child remains without placement? Casuistry is immense and it is impossible to predict all possible violations.89 With a growing industry driven by demand, surrogacy is a concern for child rights and protection. 40 sentence, supra note 24. Kant`s views may be revealing on this point. He explains that the interaction between parents and their children is an interdependent, non-consensual fiduciary interaction that produces rights that „resemble“ rights to things: children are effectively unable to consent to how they are treated by their parents. In the absence of consent, the trustee should not benefit from his position vis-à-vis the beneficiary: he must promote the interests of the beneficiary. Therefore, if parents do not fulfill their duties, they have the right to be put back in the situation where, although they cannot yet be masters of themselves, they are not used as a mere means to their parents` ends.
For a discussion, see Arthur Ripstein, Kant on Law and Justice in The Blackwell Guide to Kant`s Ethics 161 (T. E. Hill, ed, 2009). In addition, it may be philosophically objected that there are no relevant differences between commercial surrogacy and the direct purchase and sale of children: it can be assumed that the buyer would also be subject to the same human rights laws and obligations as intended parents in surrogacy arrangements. One possible answer to this objection is that there is a conceptual distinction between surrogacy and the buying and selling of children. In surrogacy, the object of the agreement is not the children per se, but the provision of a specific service, namely surrogacy. In contrast, in a purchase and sale contract, the object of the contract is the item to be delivered to the buyer. This concern applies not only to surrogacy, but to various areas of law.
In its preamble, the Convention on the Rights of the Child states that „children have the right to special care and support“. Article 3 recognizes that „in all measures concerning children, whether taken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration“. 74 With regard to the inter-American system, IACHR Advisory Opinion 17/2002 on the legal situation and human rights of the child stated that the best interests of the child must be understood. 51Abrams cites a recent study of British women`s attitudes that suggests that stigma is associated with surrogacy, consistent with findings in the United States and Canada. See A. E. Poote & O. B.
A. van den Akker, British Women`s Attitudes to Surrogacy, 24 Hum. Reprod. 139 (2009), cited in Abrams, cited in footnote 50, p. 182. In this sense, it is important to give priority to the rights of babies born through surrogacy, whose best interests may be neglected, in order to better protect the rights of other parties concerned [18]. From the point of view of Article 16, paragraph 2, of the Convention, this objection to surrogacy seems to appeal to public order or morality as a ground for restricting access to surrogacy. Nevertheless, the reference to morality or the common good should not necessarily be linked to the values of the majority, namely positive morality (the fact that certain values are shared by the majority says nothing about whether the law should apply them); Nor can the expression „ordre public“ mean only „order“.
The Court`s interpretation of Article 11 of the ACHR dictates that the State must not interfere in individual life project choices or ideals of human excellence; Instead, it should limit itself to designing institutions that make it easier for people to pursue their own plans and realize the ideals of their virtue, such as different ways of life, even though those plans may seem irrational or reckless to a majority of us.28 The limit, then, is the violation of the rights of third parties. Therefore, in order to reject the essentialist thesis and even to admit the existence of a close connection between sexuality and a person`s identity, it may be sufficient to invoke the prohibition against imposing values on other persons. It follows from the foregoing that the – popular – view that the sale of reproductive services is immoral does not in itself justify its prohibition. In all cases, it would have to be proven that surrogacy causes harm to third parties – such as the resulting child or pregnant women. To address the problem of potential use, let me look at three regulatory approaches: the „contractual-economic“ vision; the „anti-stigma“ approach; and the perspective of „expectations“. I will address each of these three in turn. Assuming surrogacy is compatible with ACHR, I will explain in my remarks how each of these approaches can help us think about what regulation should or should not look like. 1It has been argued that surrogacy is actually not a new technology, but a social arrangement with ancient origins: the biblical examples are those of Abraham and Sarah, and Rachel and Jacob.
See Sharyn L. Roach Anleu, Strengthening Gender Norms: Commercial and Altruistic Surrogacy, 33 Acta. Sociologica 63 (1990). At the very beginning of this article, it is important to note that legally speaking, the surrogate does not need to be a woman. Take the case of Argentina, where Law 26743 on Gender Identity, adopted in May 2012, establishes a right to decide on a „|“, whether or not the gender chosen corresponds to the gender assigned to it at birth. Section 3 of the Act recognizes, among other things, the right to have a „|“. is corrected in all documents proving identity. With that in mind, I will use the term „surrogate“ instead of „surrogate.“ Where necessary, I will use heteronormative terminology only for clarity and brevity. Nevertheless, many questions surround the right of the sperm donor. For example, the right to remain anonymous.
The Assisted Human Reproduction Technology Act 2007 immediately removed that from them. This is what emerges from an article published by the Sydney Morning Herald: „Allow sperm donors the right to retain their former anonymity“. This focuses on eliminating the privacy violation of NSW`s sperm donor laws. The majority of sperm donors were assured that they would remain private, and „there is a strong legal and moral responsibility for law-abiding civil society to protect the privacy of sperm donors.“ .