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Assisted reproduction on treacherous terrain: the legal hazards of cross-border reproductive travel

      Abstract

      The growing phenomenon of cross-border reproductive travel has four significant legal dimensions. First, laws that ban or inhibit access to assisted reproductive procedures in one country lead patients and physicians to travel to other countries to acquire, to contribute to or to provide assisted reproductive services. Such laws may include provisions that criminalize those who assist or advise patients to undertake such travel. Second, the law may expressly criminalize crossing borders to obtain, to be a donor for or to perform certain procedures. Third, the law may interfere with the ultimate goal of reproductive travellers by refusing to recognize them as the parents of the child they have crossed borders to conceive. Finally, facilitating cross-border reproductive travel may expose physicians, attorneys and brokers to malpractice or other civil liability. This article explores these legal dimensions of cross-border reproductive care and uses the legal doctrines of proportionality, extraterritoriality and comity to assess the legality and normative validity of governmental efforts to curb or limit assisted reproductive practices.
      This article explores the four significant legal dimensions of the growing phenomenon of cross-border reproductive travel. It first discusses laws that ban or inhibit access to assisted reproductive procedures to show how restrictive laws in one country often lead patients and physicians to travel to other countries to acquire, to contribute to, or to provide assisted reproductive services. Such laws may include provisions that criminalize those who assist or advise patients to undertake such travel. The article then explores how the law, albeit rarely, may expressly criminalize crossing borders to obtain, to be a donor for, or to perform certain procedures. Turning to the third dimension of cross-border reproductive care, this article shows how the law may interfere with the ultimate goal of reproductive travellers when they meet with refusal by their country’s officials to recognize them as the parents of the child they have crossed borders to conceive. Finally, this article describes how cross-border reproductive travel may expose physicians, attorneys and brokers to malpractice or other civil liability. After discussing all four legal dimensions of cross-border reproductive care, this article analyses the legality and normative validity of governmental efforts to curb or limit assisted reproductive practices.

      Keywords

      Introduction

      Nation-states in all regions of the world often use the law as a tool for regulating assisted reproductive technology. In roughly 40% of countries surveyed in the IFFS Surveillance 2010, assisted reproduction is governed by statute, sometimes in accordance with comprehensive licensing schemes but more often on a piecemeal basis (
      • Jones H.W.
      • Cooke I.
      • Kempers R.
      • Brinsden P.
      • Saunders D.
      Surveillance 2010.
      ). Although not a definitive accounting of every relevant regulation in every country, the Surveillance nonetheless provides important evidence of the wide-ranging variation among the laws that govern assisted reproduction around the world, variation likely owing to differing ‘cultural attitudes, traditions, religious views, and the majority’s moral position’ (

      Gürtin-Broadbent, Z., 2010. Problems with legislating against ‘reproductive tourism’. BioNews. <http://www.bionews.org.uk/page_56954.asp>.

      ).
      In countries where law is the primary regulator of assisted reproduction, it dictates what procedures may be undertaken, who may have access to them, what portion of the costs will be covered by public or private health insurance and the parentage ramifications of resort to particular procedures. These laws play a role in the global phenomenon of cross-border reproductive care (CBRC), because patients in countries with restrictions on assisted reproduction often choose to travel to other more permissive countries in search of treatment. Part of the growing worldwide phenomenon of medical tourism, these migrations have been called many things, most frequently reproductive tourism. More recently, the more neutral term ‘cross-border reproductive care’ has taken hold. Although not all CBRC is the result of legal restrictions, a significant amount of CBRC is either caused by these laws or otherwise fraught with legal hazards for doctors, patients, attorneys and brokers.
      This article explores the ways in which laws regulating assisted reproduction trigger, prohibit or interfere with CBRC. It also examines the points at which doctors who travel abroad to provide care or who, alongside attorneys and brokers, advise and encourage patients to travel abroad for care, risk criminal or civil liability. Finally, with the aid of the legal doctrines of proportionality, extraterritoriality and comity, this article analyses the legal and normative defensibility of laws that inspire, forbid or attempt to deter CBRC.

      Reproductive tourism and the law

      The rapidity with which information about infertility procedures can be exchanged and the ever-increasing options that patients with sufficient economic resources have to travel for infertility treatment have created a reproductive technology industry that is authentically global in scope. Joining the cross-border activities of physicians, clinics and patients are attorneys and brokers who specialize in advising patients on their options and bringing them together with suitable providers. The vulnerability of infertility patients, coupled with the lucrativeness of infertility care, raises concerns about the significant gaps in the regulation of the burgeoning CBRC industry. The law currently interacts with the growing phenomenon of cross-border reproductive travel in four significant ways.

      Legal triggers of CBRC

      First, legal restrictions on assisted reproductive procedures or limitations on access to them by certain classes of individuals may trigger travel abroad for assisted reproductive services. Such laws may also inspire physicians to travel abroad to provide services outlawed at home or to refer patients to clinics in more permissive countries. Examples of legal restrictions that may trigger cross-border movements or referrals are Germany’s ban on IVF with egg donation (
      • Bergman S.
      Reproductive agency and projects: Germans searching for egg donation in Spain and the Czech Republic.
      ), Italy’s, Turkey’s and most Muslim countries’ ban on any use of third-party gametes (
      • Gürtin Z.
      Banning reproductive travel: Turkey’s ART legislation and third-party assisted.
      ,
      • Inhorn M.C.
      Diasporic dreaming: return reproductive tourism to the Middle East.
      ,
      • Inhorn M.C.
      ‘Assisted’ motherhood in global Dubai: reproductive tourists and their helpers.
      ,
      • Inhorn M.C.
      Global infertility and the globalization of new reproductive technologies: illustrations from Egypt.
      ,
      • Inhorn M.C.
      Local Babies, Global Science. Gender, Religion, and In Vitro Fertilization in Egypt.
      ,
      • Inhorn M.C.
      • Shrivastav P.
      Globalization and reproductive tourism in the United Arab Emirates, Asia Pac.
      ,
      • Zanini G.
      Abandoned by the state, betrayed by the Church: Italian experiences of CBRC.
      ), France’s exclusion of non-heterosexual couples from infertility treatment (
      • De Sutter P.
      Considerations for clinics and practitioners treating foreign patients: lessons from experiences in Ghent University Hospital, Belgium.
      ), Australia’s ban on non-medical sex selection (
      • Whittaker A.
      Reproduction opportunists in the new global sex trade: PGD and non-medical sex selection.
      ), the ban on surrogacy in many countries (
      • Pande A.
      Transnational commercial surrogacy in India: gifts for global sisters?.
      ), and the Netherlands’ and the UK’s ban on anonymous gamete donation (
      • De Sutter P.
      Considerations for clinics and practitioners treating foreign patients: lessons from experiences in Ghent University Hospital, Belgium.
      ,
      • Hudson N.
      • Culley L.
      Assisted reproductive travel: UK patient trajectories.
      ). Some of these legal regimes may also prohibit making referrals to clinics in countries where the procedures sought are legal (
      • Van Hoof W.
      • Pennings G.
      Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment?.
      ) or even mentioning prohibited techniques to patients (
      • Urman B.
      • Yakin K.
      New Turkish legislation on assisted reproductive techniques and centres: a step in the right direction?.
      ).
      Important and ongoing empirical work confirms that law is the primary impetus behind cross-border reproductive travel within Europe (
      • Pennings G.
      Cross-border reproductive care in Belgium.
      ,
      • Shenfield F.
      • de Mouzon J.
      • Pennings G.
      • Ferraretti A.
      • Anderson A.
      • de Wert G.
      • Goossens V.
      Cross-border reproductive care in six European countries.
      ). The European legal framework allows member states of the European Union to prohibit assisted reproduction within their borders but, owing to the freedom of movement guaranteed by the European Convention, not to prevent or penalize their citizens from seeking those same procedures in other European countries. This freedom may not include, however, reimbursement under the home state’s national health insurance programme for procedures that are illegal at home (
      • Van Hoof W.
      • Pennings G.
      Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment?.
      ).
      Although some countries have become destinations for reproductive tourism because they have no law on assisted reproduction, in some cases a state’s law may be used to encourage or further develop a lucrative reproductive tourism industry that has been thriving in a legal vacuum. India, for example, having become a destination for reproductive tourists interested in hiring gestational surrogates, is now considering legislation that would officially legalize commercial surrogacy by removing the obstacles that foreign patients seeking to become parents through surrogacy have at times encountered. The current bill contains language that would require potential parents to prove that surrogacy is permitted in their home country and that the child to be born will be permitted entry on the same terms as would a biological child of the parents (

      Hyder, N., 2011. India debates new surrogacy laws. BioNews. <http://www.bionews.org.uk/page_88796.asp>.

      ).

      Legal extraterritoriality

      The second manner in which the law interacts with CBRC is when it prohibits a country’s nationals from crossing borders to obtain certain procedures illegal at home. Admittedly rare, this kind of law nonetheless currently exists in Turkey, Malaysia, New South Wales, Queensland and the Australian Capital Territory. Turkey has long banned all third-party assisted reproduction but now explicitly prohibits travelling abroad to procure donor gametes (
      • Urman B.
      • Yakin K.
      New Turkish legislation on assisted reproductive techniques and centres: a step in the right direction?.
      ). Malaysia and the three Australian jurisdictions prohibit international commercial surrogacy (,
      • Millbank J.
      The new surrogacy parentage laws in Australia: cautious regulation or ‘25 brick walls’?.
      ).

      Refusal of legal recognition

      A third effect of the law on cross-border reproductive travel occurs when reproductive travellers and their offspring are refused legal recognition when they return to their country of origin. Interference of this sort is becoming increasingly common. Citizens of several European and Asian countries, including the UK, France, Germany, Spain, Belgium and Japan, have been refused travel documents for their children by their consular officials abroad upon suspicion that the children were the result of international commercial surrogacy. If a family is able to return home, parents have sometimes encountered official refusal to recognize the parent–child relationship or to grant citizenship to the children (
      • Storrow R.F.
      Travel into the future of reproductive technology.
      ). The French press reports that this interference befalls about 400 French couples each year, leading lawyer Valérie Depadt-Sebag to designate the children ‘a new category of pariahs’ that reintroduces a distinction between legitimate and illegitimate children that was long ago expunged from French law (

      Rotman, C., 2010. ‘Filles fantômes’ en mal de noms, Libération, Feb. 18.

      ).

      Malpractice and other civil liability

      The fourth important legal dimension of cross-border reproductive travel is the malpractice or other civil liability that may arise between patients and the medical and legal professionals or brokers who undertake to assist them. Malpractice liability results from the breach of a professional standard of care and resulting damages to a patient or client. Malpractice is complicated in the cross-border context owing to the different standards of care that exist in different jurisdictions. Indeed, scholars of medical tourism have expressed concern that patients who travel abroad for medical procedures may have little legal recourse against malpractice in jurisdictions that defer heavily to physicians in determining the standard of care (
      • Cortez N.G.
      Patients without borders: the emerging global market for patients and the evolution of modern health care.
      ). Moreover, there may be legal and practical barriers to bringing suit against a foreign physician or clinic in a patient’s home country (
      • Cohen I.G.
      Protecting patients with passports: medical tourism and the patient-protective argument.
      ). Finally, litigation by foreigners in the country where the service was delivered can be notoriously difficult and expensive. Even if a judgment can be obtained, it can be difficult to enforce from a foreign location.
      The professional malpractice of attorneys may also play a role in CBRC. For example, a patient may retain an attorney for advice about the possible legal complications of engaging in international commercial surrogacy. If the agreement between the attorney and the client encompasses counselling on the possible legal ramifications of pursuing international commercial surrogacy, the attorney risks liability if she provides erroneous information that causes the client to suffer injury.
      Finally, the deceptive trade practices of brokers are less likely to be a source of legal liability in the cross-border context. Unlike physicians and attorneys, who are regulated, licensed and have special fiduciary obligations to their patients and clients, a broker normally operates free of regulation and has no obligation to eschew conflicts of interest that would impede her from zealously promoting the interests of the patient. Indeed, a broker’s clients may actually be the clinics that have hired her to locate patients. In pursuing her trade, a broker may make misrepresentations about the services or level of care the patient can expect from the foreign clinic (
      • Cortez N.G.
      Recalibrating the legal risks of cross-border health care.
      ). Under the law, if the patient is thereafter harmed by the clinic, the broker may not be liable if she, as is typical, has signed a contract with the patient that absolves her from liability. It is of the utmost importance that patients understand that brokers, who unquestionably provide a valuable service and may have the very best of intentions, are not necessarily advocates for patients but may be interested above all in steering patients to overseas clinics with which they may have exclusive agreements (
      • Speier A.
      Brokers, consumers and the Internet: how North American consumers navigate their infertility journeys.
      ).

      Application of legal doctrines

      In connection with what follows, some definitions may be helpful to the reader. Proportionality is a doctrine that places limits on legislative power. It requires that before a law will be permitted to intrude into matters of great human importance – like reproduction – the objective of the law must be sufficiently weighty and the means employed by the law must be the only or the least intrusive means of achieving the objective. Extraterritoriality is a broad doctrine defining when a state’s laws may have effect beyond its borders. It permits a state to prosecute its citizens for activities undertaken overseas or foreign nationals whose actions overseas have deleterious consequences within the state. Finally, comity is a doctrine holding that states should defer and give effect to the judgments of other states. In combination, these doctrines help define the limits governments must respect when they contemplate passing laws that trigger or curb CBRC.

      Proportionality

      In general, in democratic systems legislatures are free to enact laws as long as those laws are rationally related to achieving legitimate aims. Restrictions on reproductive autonomy and other rights of fundamental importance, though, must satisfy the higher standard of proportionality (

      Evans v. United Kingdom, 2007. No. 6339/05, E.C.H.R. 2007.

      ). Proportionality requires that the restriction align closely with the goal the restriction is intended to achieve (
      • Arai-Takahashi Y.
      The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR.
      ). This standard does not prohibit a state from passing laws in order to achieve ethical objectives but it does prevent a legislature from imposing restrictions that have too little to do with the achievement of those normative goals (
      • Storrow R.F.
      The pluralism problem in cross-border reproductive care.
      ). In cases where fundamental rights are at issue, proportionality requires that legislatures adopt ‘the only or the least intrusive means of achieving the aim pursued’ (

      S.H. and Others v. Austria, 2010. No. 57813/00, E.C.H.R. 2010.

      ). Proportionality, then, prevents majoritarian perspectives on volatile issues from automatically smothering alternative points of view.
      The recent case of S.H. and Others v. Austria suggests that restrictions on assisted reproduction may have to satisfy the standard of proportionality in the future. The European Court of Human Rights was asked to hear two petitions that challenged the provisions of Austria’s law banning all egg donation and sperm donation when used for IVF. The court ruled that the decision to use medically assisted reproduction to have a child fell within the ambit of the right to be free from state interference in matters of private and family life. Even though Austria believed the law would prevent the exploitation of egg providers and the discriminatory selection of embryos based on genetic traits, the court nonetheless found the prohibitions to be disproportionate ‘unless … [they were] the only means of effectively preventing serious repercussions’ (

      S.H. and Others v. Austria, 2010. No. 57813/00, E.C.H.R. 2010.

      ). The court believed the government could count on medical professionals, guided by their code of ethics, to safeguard against and minimize the risks of harm from assisted reproduction. For this reason, the court found that Austria had failed to choose ‘the only or the least intrusive means of achieving’ its aims. The fact that Austria’s law was found to violate the European Convention on Human Rights sends a strong signal that European countries are not free to impose whatever restrictions on assisted reproduction they may desire. Indeed, toward the end of its opinion, the court stated plainly that ‘where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted.’
      One aspect of S.H. and Others v. Austria that has created confusion is the court’s statement that a state may legitimately decide to ban all forms of assisted reproduction but that once it permits some forms of assisted reproduction, it must do so on a nondiscriminatory basis. No country in Europe actually bans assisted reproduction, so the import of the prohibition on discrimination for a legal regime that permits only assisted reproduction employing the couple’s own gametes remains unclear. S.H. and Others v. Austria, after all, seems primarily to disapprove of discriminating between forms of assisted reproduction that employ donor gametes – between IVF and intrauterine insemination using donor spermatozoa on the one hand and between sperm donation and ova donation on the other.
      The Italian Constitutional Court shed some light on this unanswered question around the same time that S.H. and Others v. Austria was decided. In striking down provisions in the Italian law mandating the production of at most three embryos in any one IVF cycle and the return of all embryos to the uterus, the court expressed concern that the law rendered medical judgment irrelevant in the treatment of patients despite the individualized circumstances different patients invariably present. Like the European Court of Human Rights in S.H., the Italian Constitutional Court was unwilling to defer to the legislature where a less intrusive approach – the resort to medical judgment – was available. The court also expressed concern that, in purporting to protect embryonic life, the law made no account of the medical fact that ‘it is impossible to procreate without a certain degree of early embryo loss’ (
      • Benagiano G.
      • Gianaroli L.
      The Italian constitutional court modifies Italian legislation on assisted reproductive technology.
      ). This reasoning suggests that limitations on assisted reproduction must be harmonized not only with other permitted forms of assisted reproduction but with unassisted reproduction as well. The decision may not mandate the end of Italy’s ban on the use of donor gametes, but it does suggest that the right to be free of legal interference in the decision to have a child does not end with infertility.
      In future challenges to the Italian law, there are strong arguments to be made against the ban on donor gametes. The Italian legislature’s stated objective in enacting the ban was to reaffirm the heterosexual couple as the only appropriate locus for family formation and to avert several feared dangers: (i) the relationships of couples would be threatened by the presence of children not biologically related to both of them; (ii) children would be harmed by not knowing the identity of and not being raised by both biological parents; and (iii) Italian society would be harmed by increases in marital breakdown and psychologically damaged children. Ironically, it is CBRC itself that calls into question whether Italy’s ban on donor gametes stands in adequate proportion to the aims of its law. Via cross-border reproductive travel all of the feared dangers to patients, children and society become subject to importation into Italy when patients return from abroad and give birth. Despite the supposed importance of biological ties, a gamete provider has no parental rights or obligations under the law. Despite the belief that third-party gamete donation renders family bonds fragile, the law contains no provision requiring the couple to adopt the child so as to solidify those bonds. The Italian law fails even to make a symbolic gesture in favour of the child’s right to know his biological parents.
      The obvious lack of any connection between the Italian law and the harms it seeks to address is uncharacteristic of legislation that satisfies the standard of proportionality. Now that the European Court of Human Rights has signalled its willingness to narrow the traditionally wide margin of appreciation that member states have enjoyed in regulating assisted reproduction, Italy may be in a position to rethink provisions of its law beyond those that its constitutional court has already declared infirm.

      Extraterritoriality

      Like Italy, Turkey prohibits using donor gametes in assisted reproduction (
      • Jones H.W.
      • Cooke I.
      • Kempers R.
      • Brinsden P.
      • Saunders D.
      Surveillance 2010.
      ). Turkey is also a signatory of the European Convention of Human Rights and has a constitution that embraces the proportionality standard (
      • Kaboğlu I.Ö.
      • Koutnatzis S.-I.G.
      The reception process in Greece and Turkey.
      ). Recently, however, Turkey revised its regulations to assert criminal law jurisdiction over Turkish citizens who travel abroad to acquire donor gametes. The law also criminalizes brokers, physicians and donors who assist Turkish reproductive travellers. This extraterritorial assertion of jurisdiction is an attempt to prevent a Turkish child’s ancestry from becoming obscured through gamete donation abroad (

      Gürtin-Broadbent, Z., 2010. Problems with legislating against ‘reproductive tourism’. BioNews. <http://www.bionews.org.uk/page_56954.asp>.

      ,
      • Urman B.
      • Yakin K.
      New Turkish legislation on assisted reproductive techniques and centres: a step in the right direction?.
      ).
      Proportionality aside, typical restrictions on assisted reproduction fall within the competence of states to pass laws that regulate persons found or acts occurring within their individual territorial boundaries. These laws do not reach reproduction assisting procedures that take place in other countries. By contrast, assertions of extraterritorial legislative jurisdiction are rare but not unknown in matters of human reproduction. Since extraterritorial application of the law blurs the sovereign boundaries of states and can lead to disputes over jurisdiction, international law raises a presumption that a legislative enactment of an individual state does not have extraterritorial effect in the absence of plain language in the enactment itself or the conformity of its extraterritorial application with one or more of four principles (
      • Storrow R.F.
      Travel into the future of reproductive technology.
      ).
      In the area of human reproduction, extraterritorial laws are typically based on the uncontroversial nationality principle, which holds that a state, in the interest of controlling the conduct of its nationals, may prosecute offences committed by its nationals abroad. For example, in 1983, the Spanish Supreme Court imposed a prison sentence upon a Spanish couple for an abortion that took place in the UK (
      United Nations Fund for Population Activities
      Termination of pregnancy: Spain.
      ). Likewise, Germany sought to enforce its former ban on abortion via forced gynaecological examinations of German citizens at the Dutch–German border (
      • Kreimer S.
      Law of choice and choice of law: abortion, the right to travel and extraterritorial legislation in American federalism.
      ). More recently, the Canadian Health Ministry opined that Canadians who crossed the border to purchase gametes would be breaking the law (

      Jiménez, M., 2005. ‘Eggs shouldn’t go to the highest bidder’. Globe and Mail, Jun. 4.

      ). The Spanish decision was eventually overturned by Spain’s Constitutional Court and the German examinations ceased under the pressure of international condemnation. Today, both actions would likely be found incompatible with European Union guarantees of freedom of movement and human rights (

      United Kingdom House of Commons Science and Technology Committee, 2005. Human Reproductive Technologies and the Law, 5th rpt., vol. 1. Stationery Office, London.

      ). Nevertheless, where such guarantees have no application, international law continues to recognize both the territorial and nationality principles as the most fundamental bases of states’ competence to legislate within their borders or extraterritorially (
      American Law Institute
      Restatement (third) of the Foreign Relations Law of the United States.
      ).
      Less common bases for extraterritorial jurisdiction are embodied in the protective, passive personality and universality principles. The protective principle, also known as the objective territorial principle, holds that a state may legislate against acts committed abroad that have harmful effects within the state, even if the conduct was committed by a foreigner (
      American Law Institute
      Restatement (third) of the Foreign Relations Law of the United States.
      ). For example, in 1975, France passed a law criminalizing ‘inciting’ French women to obtain abortions in other countries. The anti-incitement statute expressly included those who broadcast messages from outside France that were received within it (
      United Nations Fund for Population Activities
      Abortion: France.
      ). The passive personality principle is used to assert jurisdiction over persons who harm a state’s nationals living abroad (
      American Law Institute
      Restatement (third) of the Foreign Relations Law of the United States.
      ). For example, the lower court in the Spanish case described above reasoned that the woman who had had the abortion in England had harmed a Spanish citizen (the fetus). Finally, the universality principle allows even a country with no connection to the persons or acts involved to prosecute those accused of particularly egregious crimes such as genocide, engaging in a slave trade and war crimes (
      American Law Institute
      Restatement (third) of the Foreign Relations Law of the United States.
      ).
      Important limits apply to extraterritoriality. In addition to the presumption against extraterritoriality described above, an exercise of jurisdiction on one of the four bases for extraterritoriality is nonetheless unlawful if it is unreasonable. In making this assessment, courts consider various factors such as the importance of the legislation to the state, the prevalence of similar laws in other jurisdictions, the likelihood of conflict with other states’ laws and the extent of connections between the offence, the parties responsible for the offence and the regulating state. Some states specifically limit the extraterritorial reach of their criminal laws to specific crimes like homicide, sedition or treason (

      United Kingdom House of Commons Science and Technology Committee, 2005. Human Reproductive Technologies and the Law, 5th rpt., vol. 1. Stationery Office, London.

      ). Others insist on double criminality; in other words, they require that the offence also be an offence in the foreign jurisdiction (

      United Kingdom House of Commons Science and Technology Committee, 2005. Human Reproductive Technologies and the Law, 5th rpt., vol. 1. Stationery Office, London.

      ,

      Wultz v. Islamic Republic of Iran, 2010. 755 F. Supp. 2d 1.

      ). Clearly, in international law, extraterritoriality is a feature reserved for only the most important legislation that advances the most pressing interests.
      Setting aside the complications the Turkish law might pose for its human rights obligations as a member of the Council of Europe or its bid for full membership in the European Union, one promising avenue for evaluating the legitimacy of Turkey’s extraterritorial criminalization of gamete procurement is to examine the provision alongside other laws that criminalize the private behaviour of citizens abroad. Canada, for example, prosecutes Canadians who engage in the sexual exploitation of children abroad (

      R. v. Klassen, 2008. B.C.J. No. 2485; 2008 B.C.S.C. 1762.

      ). Some countries criminalize removing children to foreign locations for clitoridectomies or other forms of female genital cutting (FGC) (

      McVeigh, T., Sutton, T., 2010. Horror of genital mutilation stalks young British girls. The Observer, Jul. 25.

      ,

      Sussman, N., 2011. After school in Brooklyn, West African girls share memories of a painful ritual. N.Y. Times, Apr. 26.

      ). Linking laws that ban crossing borders for sex with children or for FGC is international condemnation of practices that harm and exploit children. The Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography requires its 141 parties to undertake extraterritorial measures to combat child sex tourism. Today, child sex tourism is the subject of extraterritorial criminal laws in 32 countries regardless of double criminality. Similarly, the Convention on the Elimination of All Forms of Discrimination Against Women recognizes FGC as a cultural practice that is prejudicial to the health and wellbeing of women and children. Indeed, FGC has been identified with discrimination against women, the violation of physical integrity and torture. FGC figures prominently in asylum cases, where it is considered to be persecution because of its physically invasive, psychologically damaging and permanently disfiguring effects, including lifelong health problems and the deprivation of a normal and fulfilling sexual life (

      Mohammed v. Gonzales, 2005. 400 F.3d 785.

      ). Moreover, condemnation of FGC is not simply a concoction of moral imperialism given that a number of countries where it has been a traditional practice now outlaw it (
      • Cook R.J.
      • Dickens B.M.
      • Fathalla M.F.
      Female genital cutting (mutilation/circumcision): ethical and legal dimensions.
      ). The international condemnation and concern about child sex tourism and FGC leave little room for disagreement about whether extraterritorial criminal legislation is ethically reasonable in these contexts (
      • Van Hoof W.
      • Pennings G.
      Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment?.
      ).
      Despite the clear appropriateness of employing extraterritorial laws to combat child sex tourism and FGC, it does not follow that extraterritorial prosecution of CBRC is of necessity legally infirm. First, the Turkish law is an expression of the nationality principle, the most defensible basis for extraterritorial jurisdiction. Second, the Turkish law is unlikely to give rise to any jurisdictional dispute between states that the limits on extraterritoriality are designed to avert. Even if Turkey’s attempt to criminalize foreign doctors and donors who assist Turkish patients abroad cannot be condoned as reasonable applications of the protective or passive personality principles, this leaves Turkish women and couples nonetheless exposed to prosecution for CBRC. Many will perceive such a law to be highly irrational, but in the absence of some dispute between nations as to which should exercise jurisdiction, the reasonableness analysis is not likely to be controlling, at least as a matter of the international law of extraterritoriality.
      Perhaps it states the obvious that, as legal theorist Margaret Brazier has testified, ‘No system of regulation can eliminate or effectively control procreative tourism’ (

      United Kingdom House of Commons Science and Technology Committee, 2005. Human Reproductive Technologies and the Law, 5th rpt., vol. 1. Stationery Office, London.

      ). Brazier’s comment exposes the fundamental flaw in the Turkish law – the fact that its utter unenforceability makes it an exercise in pure symbolism. The severity of symbolic harm, though, should not be underestimated (
      • Boetzkes E.
      Symbolic harm and reproductive practices.
      ). Whereas restrictions within a country may make a statement about what local cultural values have to say about good and ethical medical practices, extraterritorial laws make a much more direct statement about good citizenship by casting infertile couples and individuals who evade the law through travel as morally degenerate and a national threat (
      • Gürtin-Broadbent Z.
      Anything to be a mother.
      ). This combination of restrictive reproductive regulation and prohibitions on CBRC may not offend the legal standard of extraterritoriality, but it nonetheless is a particularly potent recipe for dangerously exacerbating feelings of frustration, suppression and indignation (
      • Pennings G.
      International parenthood via procreative tourism.
      ).

      Comity

      Among the reproduction assisting procedures that patients travel abroad to procure, surrogacy, heavily restricted or outlawed by many countries around the world, poses special legal problems owing to its peculiar factual context. The children born of international surrogacy tend to be born in the host country. The intending parents must obtain travel documents to return with their new children to their countries of origin. For this reason, surrogacy is much easier for consular officials to detect than cases of intrauterine insemination using donor spermatozoa, or IVF with donor eggs, spermatozoa or embryos that result in the pregnancy of the intending mother abroad but the birth of the child in the home country. A government intent on curtailing cross-border surrogacy may refuse to issue a passport or visa to the child, may not bestow citizenship upon the child and may refuse to recognize the intended parents as the legal parents of the child. Problems can also arise in host countries where the law does not automatically entitle the intending parents to recognition as the legal parents of the child.
      The case of the Yamadas, a Japanese couple who travelled to India to hire a gestational surrogate, highlights the problems that can arise in the host country. After the surrogate gave birth to Manji, a baby girl created with Mr Yamada’s spermatozoa and the egg of a third party, the Yamadas divorced. Mr Yamada and Manji then became ‘caught between two legal systems’ when India refused to allow Mr Yamada, because he was a single father, to obtain a passport for Manji or to legally establish his fatherhood by adopting her (

      Points, K., 2009. Commercial surrogacy and fertility tourism in India: the case of Baby Manji. <http://www.duke.edu/web/kenanethics/CaseStudies/BabyManji.pdf>.

      ). Appeals to Japan, which does not explicitly ban surrogacy but where the law provides that the gestational mother is the legal mother of a child, were unavailing. Finally, after an Indian court ordered the government to act expeditiously on Mr Yamada’s request for permission to take Manji to Japan, the Indian government issued a transit document, Japan having issued a 1-year visa to Manji on humanitarian grounds.
      Several cases illustrate what can go wrong when the law of the home country bans surrogacy and intending parents nonetheless pursue it abroad. In one of many French cases, Sylvie and Dominique Mennesson had twin girls with the aid of a gestational surrogate in California and were legally recognized as the parents of the twins on birth certificates issued by that state. Consular officials in Los Angeles, suspicious that the couple had employed a surrogate in contravention of French law, refused to issue passports or visas for the children. After the children travelled on US passports back to France with their parents, French prosecutors attempted to charge the Mennessons with fraud and also attempted to set aside the official registration of their parentage. The court determined that France had no criminal extraterritorial jurisdiction in the case, since the acts committed abroad were legal in the destination country. It also ruled that the couple should be recognized as the parents of the children but that the children should not be recognized as French citizens. This decision was upheld on appeal in a decision stating that giving legal effect to the Californian birth certificate would violate fundamental principles of French law (

      Le Monde, 2011. Pas d’inscription á l’état civil pour les enfants nés de mère porteuse. Le Monde, Apr. 6.

      ).
      In a Spanish case, consular officials in Los Angeles refused to recognize the parentage of two male Spanish nationals, married in Spain, who travelled to California to have children with the help of a surrogate mother (

      Farnós Amorós, E., 2010. Inscripción en España de la filiación derivada del acceso a la maternidad subrogada en California. InDret 1. <http://www.raco.cat/index.php/InDret/article/viewFile/225321/306632>.

      ). Twins were born and the official birth certificates, in conformity with a prebirth judgment issued by a California court, listed both men as parents with no reference to the genetic or gestational parentage of the twins. They sought the assistance of Spanish consular officials for the purpose of registering their parentage of the twins in the Spanish civil registry. The consulate refused to issue visas, basing its decision on the Spanish law prohibiting surrogacy in Spain. Upon returning to Spain, the couple met with resistance when they sought official recognition of the California birth certificates. A court hearing the matter declared that it was a violation of Spanish law not to include the gestational mother as a parent in the registry because the primary and most important fact for this purpose was who gave birth (

      Requejo, M., 2010. Surrogate motherhood and the Spanish homosexual couple. <http://conflictoflaws.net/2010/surrogate-motherhood-and-spanish-homosexual-couple-iii/>.

      ). The Ministry of Justice intervened to establish guidelines for the entry into the civil registry of children born to surrogate mothers abroad. The Ministry found it necessary to balance the interests of the children with the interests of the Spanish government in prohibiting surrogacy. This balance could be achieved, it concluded, by obtaining a judgment in a host country court recognizing the legal validity of the birth certificate and making factual findings to the effect that the contract for surrogacy was entered into without fraud, overreaching or exploitation of the surrogate mother (

      De Benito, E., 2010. Justicia abre la puerta a la inscripción de los hijos de ‘vientre de alquiler’. El País, Oct. 7.

      ).
      The Spanish Ministry of Justice’s instruction embraces the legal doctrine of comity as the best solution to the family recognition problems that can arise from international commercial surrogacy. The doctrine of comity speaks to whether a country should defer to the judgments and public acts of another country. Final judgments of courts of foreign nations, which concern the recovery of sums of money, the status of a person or interests in property, are conclusive and entitled to recognition in the courts of other nations (
      American Law Institute
      Restatement (third) of the Foreign Relations Law of the United States.
      ). The judgment must have been rendered under a judicial system providing impartial tribunals and procedures compatible with due process of law, and the issuing court must have had jurisdiction over the defendant and jurisdiction over the subject matter (
      American Law Institute
      Restatement (third) of the Foreign Relations Law of the United States.
      ). A court may refuse comity if the foreign judgment in question was obtained by fraud or if extending comity would undermine a strong public policy.
      Denying children citizenship and legal recognition of the parentage of the individuals who have travelled abroad to have these children with the intent of raising them seems a particularly draconian and disproportionate response to the problems that a country fears may arise from the violation of its surrogacy proscriptions abroad. The response does not appear to be well geared to discouraging international surrogacy, nor does it entail any mechanism by which a nation might express more than a mere symbolic concern for the welfare of children and surrogate mothers.
      By contrast, the doctrine of comity seems well designed to afford states some latitude in evaluating whether the transaction abroad has proceeded in a fashion that does not give rise to anxiety about overreaching, exploitation and abuse. The recent instruction of the Spanish Ministry of Justice acknowledges the shortcomings of using the denial of citizenship and parentage recognition as blunt instruments in a battle against international surrogacy. In adopting a measured, middle-of-the-road approach, one that embraces the time-honoured international norm of comity, the Ministry has placed the burden equally on the shoulders of the state and of the commissioning parents to ensure that, above all, the transaction not have exploited conditions of poverty in the destination country and not have resulted in parentage determinations that would be anathema to the welfare of the child.

      Conclusion

      The law interacts with cross-border reproduction in several important ways. First, the law can act as a trigger of CBRC, provoking patients and physicians, beleaguered by restrictive reproductive laws, to seek more permissive legal regimes. Second, a country’s laws may act extraterritorially to ban cross-border procurement or delivery of procedures banned at home. Third, the law may deny legal recognition of children born abroad using techniques disapproved of in the home country. Finally, civil sanctions may attend the activities of physicians, attorneys and brokers involved in the growing industry of CBRC.
      In countries with restrictive reproductive laws, citizens in need of reproduction assisting techniques outlawed at home are inspired to travel in order to realize their dream of having children. These movements may signal a breakdown of the legislative process if the majority has enacted laws that do not comport with the requirement of proportionality. In matters of fundamental human importance such as reproduction, democracies curtail the ability of the majority’s perspective on the common good to prevail over all others. Instead, tolerance and respect for divergent beliefs on private matters are customary and are often enshrined in the textual frameworks that outline the limits of government. In an area as sensitive as human reproduction, it is not enough for restrictive legislation to satisfy the standard of rationality. More is required, lest pure majoritarian will succeed in suffocating other, though perhaps less popular, sentiments on family life.
      Countries with restrictive reproductive laws and a distaste for cross-border reproductive travel may choose to outlaw cross-border reproductive travel altogether. Such a symbolic law runs the risk of further alienating and offending a population already burdened by the local restrictions, but it would not necessarily be a violation of international law. Although there are significant limits on legal extraterritoriality, international law is relatively permissive when countries wish to control the behaviour of their nationals abroad. Legal extraterritoriality is without doubt most defensible when it extends to actions like child sex tourism and FGC that have triggered international condemnation. It does not follow that countries cannot express the extraterritoriality of their legislative acts on matters that give rise to less international alarm.
      Some countries ban surrogacy out of fear that impoverished women will want to become surrogates and that the children born from surrogacy arrangements will be psychologically harmed. Some of these countries are attempting to discourage their citizens from pursuing surrogacy abroad by withholding important legal recognition from those who do. The effect on the children of such actions is not adequately balanced against the objectives these countries hope to achieve. Instead, the international law doctrine of comity is appropriately fashioned to help assuage concerns that surrogates have been exploited or children harmed in the process. Obtaining a judicial decree to this effect in a foreign jurisdiction places an additional burden on the shoulders of individuals and couples who have gone to great lengths to have children via surrogacy abroad, but this approach will provide the consistency and predictability needed to protect the interests of all concerned – parents, children and society at large.
      There is a growing policy debate over the desirability of national and international legislation to curb the harm that arises from CBRC (

      Blyth, E., 2009. Tackling issues in cross-border reproductive care. BioNews. <http://www.bionews.org.uk/page_38069.asp>.

      ). Some believe that CBRC can and should be curbed via international harmonization of laws. Others seek at a minimum for all jurisdictions to promote regulation that will protect the interests of patients, donors, surrogates and future children in CBRC (

      Blyth, E., 2009. Tackling issues in cross-border reproductive care. BioNews. <http://www.bionews.org.uk/page_38069.asp>.

      ). Still others see little hope for or value in the international harmonization of laws. A primary fear is what would be lost in such a process. Local values and commitments would likely fall away; we might even see a legislative ‘race to the bottom’ once it is understood that harmonization in essence means the lowest common denominator.
      Still, harmonization in matters of family law has many adherents as is obvious from the important work of the Hague Conference on Private International Law, which has produced successful model laws in the areas of divorce and its consequences, intercountry adoption and international child abduction. On volatile issues where there is less consensus, though, ‘[w]e have to expect… that there will be a considerable amount of obstinacy with respect to deeply rooted mentalities and traditions, preventing a straightforward bioethical homogenization of Europe’ (
      • Bayertz K.
      Struggling for consensus and living without it: the construction of a common European bioethics.
      ). Given these important cultural differences between countries, the global regulatory map of assisted reproduction will likely remain a patchwork within which the law will play an increasingly important role. We can thus expect CBRC to continue for the foreseeable future, along with the wide range of legal hazards that attend it.

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