“The line between social and medical “disability” is not only blurry, it is also an arbitrary gap, susceptible to manipulation by callous politicos and social engineers. The ‘characteristic of disability’ lies in the eye of the beholder.”
Across cultural, physical, and political boundaries is the human desire to imprint the fabric of society by producing another being in one’s likeness. This desire transcends merely the want to reproduce, but also encompasses that innate need for companionship and love. Most of us can create a family through sexual intercourse with virtually no restrictions upon us. Some choose to pursue other means, such as fostering or adoption. But there are those who have no choice. Faced with infertility or another disability, they cannot reproduce through sexual intercourse and perhaps not even with the use of assisted reproductive technology (“ART”). The only way these women and their partners can pursue their right and desire to reproduce is through the use of a surrogate. In states where surrogacy is prohibited, these individuals are denied a basic human right.
This paper argues that Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) is a powerful tool for citizens to demand that their states provide effective and appropriate assistance through surrogacy. Effective and appropriate assistance requires enforcing the surrogacy contract in a court of law and allowing compensated surrogacy. These two conditions would maximize individual liberty, while minimizing incidences of black markets and medical tourism. The CRPD is an effective instrument because it seeks to incite change by recognizing the ways in which society disables individuals. As a widely adopted international doctrine, the Convention also encourages international cooperation and collaboration. This is particularly advantageous when addressing the conflicts that have arisen as a result of surrogacy tourism.
In her recent article Reproductive Rights as a Human Right: A Matter of Access or Provision, Sara Davies argues that one reason for the lack of progress in women’s reproductive health, as a human right, is the failure to clearly articulate the responsibilities of key actors in ensuring that women have access to services required to realize their reproductive rights. She suggests that what is needed is a framework that can translate decades of rights language into action and identify the provisions of law required to address women’s health. This paper seeks to establish the role and responsibility of the state in ensuring that the right to reproduce is a meaningful right for all. Drawing upon the theoretical constructs developed in disability law, this article articulates a rights-based claim to access surrogacy. The United States is used as an analytical framework, including the evolution of reproductive rights in the U.S. and the theory of disparate impact, because these concepts inform our understanding of why prohibiting surrogacy is discriminatory towards persons with disabilities.
Part I provides a brief history of the reproductive rights of persons with disabilities. Part II introduces the CRPD. The article argues that Article 23 of the CRPD augments the right to reproduce and should be interpreted as creating a positive duty on behalf of the state to enact effective and appropriate legislation that permits and regulates surrogacy. It then demonstrates that this interpretation of Article 23 is consistent with current laws and policies pertaining to persons with disabilities. This section concludes by arguing that, in the least, governments should refrain from prohibiting surrogacy because this violates the CRPD by unreasonably interfering with the right to reproduce. Part III provides an international comparative analysis and concludes that two conditions are necessary in order for the state to ensure effective and appropriate access to surrogacy—enforceable surrogacy contracts and compensation of surrogates.
Surrogacy legislation is a ripe issue for three reasons. First, the inability to procreate through traditional means affects a significant portion of the population. Of the 650 million people worldwide who have a disability, certain physical disabilities hinder a woman’s ability to engage in sexual intercourse or gestate a child. More precisely, nine out of every one hundred women worldwide between the ages of twenty and forty-four cannot conceive a child. Ten to fifteen percent of the U.S. population suffers from infertility, which constitutes a disability under the Americans with Disabilities Act (ADA). Although approximately eighty-five percent of infertility cases can be resolved through drug therapies or surgery, for the remaining cases, surrogacy is the only available option for procreation.
Secondly, regardless of whether one agrees that surrogacy should be available as a matter of right, the reality remains that the current regimes of highly restrictive and/or ambiguous surrogacy laws have created dangerous and irresponsible conditions—namely, reproductive black markets and surrogacy tourism.
Thirdly, the pressure for governments to address the issue of legalized surrogacy will likely intensify when India enacts its draft Assisted Reproductive Technologies (Regulation) Bill 2010 (“Draft ART Bill”). Currently, thousands of foreign couples are evading the legal and financial constraints of their home countries by traveling to India where surrogacy is legal and unregulated. However, a provision of India’s draft ART bill would require couples to produce a certificate from their home country verifying that surrogacy is legal in their home country and that the baby will be granted citizenship and entry into the home country.This provision will change the domestic and international landscape of the surrogacy industry.
* Lindsey Coffey was the 2010-2011 public interest fellow at the Matsunaga Institute for Peace & Conflict Resolution and the Institute of Asian-Pacific Business Law, both at the University of Hawaii at Manoa. The author thanks Ropes & Gray LLP for sponsoring the fellowship. The author also wishes to thank Professor Carole Petersen for her thoughtful support, guidance, and comments in preparation of this article. This article also benefited from comments by Mark Levin, Brien Hallet, and Frances Miller. Please send comments to email@example.com.
. Matthew D. Martin III, The Dysfunctional Progeny of Eugenics: Autonomy Gone Awol, 15 Cardozo J. Int’l & Comp. L. 371, 418 (2007).
. Sara E. Davies, Reproductive Health as a Human Right: A Matter of Access or Provision?, 9 J. Hum. Rts. 387, 387-97 (2010).
. International Convention on the Rights of Persons with Disabilities, Aug. 14-25, 2006, Some Facts about Persons with Disabilities, http://www.un.org/disabilities/convention/facts.shtml.
. Among other disabilities, see text accompanying note 51.
. ART Fact Sheet, European Soc’y of Human Reprod. and Embryology (June 2010), http://www.eshre.eu/ESHRE/English/Guidelines‑Legal/ART‑fact‑sheet/page.aspx
. Infertility Fact Sheet, Womenshealth.gov, http://www.womenshealth.gov/faq/infertility.cfm (last visited Dec. 27, 2011); The Assisted Reproductive Technologies (Regulation) Bill 2010 (“India’s Draft ART Bill”), Ministry of Health and Family Welfare et al., http://www.icmr.nic.in/guide/ART%20REGULATION
%20Draft%20Bill1.pdf [hereinafter Draft ART Bill].
. Americans with Disabilities Act (ADA), 42 U.S.C. §§12102(1)-(2) (1994 & Supp. V 2000). See also Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (holding reproduction is included within “major life activity” contemplated by the ADA).
. Fertility Treatment, Fertility-Treatment.org, http://www.fertility-treatment.org/ (last visited Dec. 27, 2011); Draft ART Bill, supra note 6, pmbl.
. The U.S. has no federal law governing surrogacy, which has resulted in a hodgepodge of state laws. State laws range from most restrictive (penalizing surrogacy arrangements with fines or imprisonment) to least restrictive (holding surrogacy arrangements legally enforceable and allowing compensation of the surrogate). Most states fall somewhere in the middle or have no clear legislation, rending courts ill-equipped to handle surrogacy litigation. See State Laws & Legislation, Human Rights Campaign, http://www.hrc.org/laws-and-legislation/state/c/parenting/ (last visited Dec. 27, 2011). Most of Europe either prohibits all surrogacy arrangements or allows only altruistic surrogacy. See Regulation (or Lack Thereof) of Assisted Reproduction Technologies in U.S. and Abroad, The Center for Bioethics & Human Dignity, http://cbhd.org/content/regulation-or-lack-thereof-assisted-reproductive-technologies-us-and-abroad (last visited Jan. 25, 2012); Whose Child is it Anyway?, Canadian Fertility and Andrology Society, http://www.cfas.ca/index.php?option=com_content&view=article&id=790&Itemid=523 (last visited Jan. 25, 2012).
. The law ministry has scanned the bill and it is expected to be introduced to Parliament in 2011 or 2012. Savita Verma, Bill to Help People Stay Single and Have Kids, India Today(June 13, 2010), http://indiatoday.intoday.in/site/story/bill-to-help-people-stay-single-and-have-kids/1/101327.html; Govt Likely to Implement Surrogacy Bill Soon, Development Channel (Feb. 24, 2011), http://www.developmentchannel.org/government/
. Draft ART Bill, supra note 6, at §34(19).Coffey