Hastings International and Comparative Law Review


Emily Stehr


Over the past decade, a growing number pf American and European women have begun to travel to other countries, often developing countries, in search of surrogates. The surrogates are usually "gestational surrogates," meaning that the children to whom they give birth are conceived via in vitro fertilization. The children are thus genetically related to the commissioning parents, or to the commissioning men and third-party women who provide eggs, but not to the surrogate birth mothers. Uncertainty about the legality of such surrogacy contracts in the United States, and outright bans on the contracts in some European countries, fuel the "reproductive tourism" market in countries, such as India, that have minimal or no regulations on the practice.

The complicated nature of the technology and economics at work in the surrogacy markets has led to a general deferral to professional bioethics analysis. The modern principles of bioethics, however, are not well suited to creating policy. The Universal Declaration on Bioethics and Human Rights (UDBHR), which blends bioethics procedure with substantive human rights policy, attempts to remedy this problem but fails because of its fatal contradiction between respect for diversity of opinion and a mandate for social justice via uniform regulation. This Note argues that for biotechnologies that affect fundamental elements of the human experience, civil society groups that base their opinions on community impact data and give a voice to the currently underrepresented must be involved in the regulatory deliberation via a process called "biopolitics." This will help ensure that the international community creates a fully informed governing structure that prevents international surrogacy from exacerbating existing, and creating new forms of social disparities and discrimination.