A Considerable Difference in Surrogacy in East Asian Laws and Common Laws - Research Paper Example

Heading: Comparative Laws Your name: Course name: Professors’ name: Date Introduction Surrogacy issues are on the rise in most parts of the world today. There are certain statutes and common laws that are been developed in various countries in order to govern these issues. In the United States, surrogacy is upheld by some states with legal system, which include California, New York, Arkansas and Massachusetts. Likewise, some of the Australian territories and provinces treat surrogacy differently. Explicitly, there is a considerable difference in the way in which surrogacy is held by East Asian laws and common laws. In the second part, the paper examines the issue of The Hague Convention on the Civil Aspects of International Child Abduction. Notably, there is a distinction in the way certain legal systems address issues of child abduction. The paper examines these issues in civil law, common law, Islamic law and East Asian law. Through the use of comparative legal system, the paper compares the aforementioned legal systems and some of the issues that need to be enhanced. Part 1 The concept of surrogacy Surrogacy involves an arrangement whereby a woman agrees to carry and deliver a child for another person or couple.1 Here, the surrogate mother can either be a genetically related (traditional surrogacy) or biologically unrelated (gestational surrogacy) mother to the child.2 In a situation that the surrogate mother receives compensation, which is more than refund of medical and other expenses, this is referred to as commercial surrogacy or altruistic surrogacy.3 In terms of traditional surrogacy, the conception of a child is done through home artificial insemination by utilizing frozen or fresh sperm, or impregnation takes place through intracervical insemination (ICI) and intrauterine insemination (IUI) and it is carried out at a health clinic.4 This process requires implantation of a previously formed embryo, it requires a clinical setting. Notably, target parents who are also called social parents can organize a surrogate pregnancy due to female infertility, homosexuality, or any other health issue that can hinder delivery or pregnancy, or make it undesirable or risky.5 Additionally, the target parent can be a single woman or man who wishes to have a biological child of his or her own.6 Imperatively, the costs and legality of surrogacy differs widely from one jurisdiction to the other, with a consequence of high rate of interstate and international surrogacy activity.7 In common law, the existing parentage assumptions govern the situation, thus they ensure that the surrogate mother and the partner are viewed as the child’s legal parents, even if they have no genetic relationship with the child. Even though surrogacy is unenforceable by making the surrogate mother give away a child under that arrangement, there are certain situations in a court of law decides that parenting by the intended parents is in the child’s best interests instead of the surrogate mother, and thus makes a ruling accordingly.8 Additionally, the intended parents are likely to ignore the responsibility of taking care of the child after birth.9 Here, the surrogate mother is offered an option of consenting to the adoption of, or caring for the child. Nevertheless, presuming that a surrogacy arrangement takes place as planned, the child’s care is the intended parents’ responsibility on or just after birth.10 Here, there is a need for legalized recognition of surrogacy through suitable parentage orders, in the child’s best interests.11 Development of surrogacy in traditional common law In Australia In all the Australian states, excluding Tasmania that prohibits all surrogacy under Surrogacy Contracts Act 1993, the concept of surrogacy has been recently made legal.12 Nevertheless, in the Australia Capital Territory and states, organization commercial surrogacy is a criminal offense, even though the Northern Territory does not have any registration that governs surrogacy and it is not planning to introduce legislation on the issue into the Northern Theory Assembly at any predictable point at a later date.13 In Australia, the Victorian laws have been changed so that that in 2010, under the Assisted Reproductive Treatment Act 2008, the altruistic surrogacy in the state was made legal.14 Nonetheless, the same laws prohibit commercial surrogacy. Since June 2010, Queensland has legalized altruistic surrogacy under the Surrogacy Act 2010, No. 2. For instance, in Dart v Graham (2008) FamCA 824, the court ruled that children are entitled to some sensible relationship with each parent. Here, the court made considerations on whether the risks of travelling by the children superseded the benefits; hence, it allowed children to travel to Bali.15 Likewise, in the Australian Capital Territory and New South Wales, surrogacy is made legal under the parentage Act 2004 and Surrogacy Act 2010, No. 102 respectfully.16 Still under the Surrogacy Act 2008, Western Australia, and under the Family Relationships Act 1975 in South Australia, altruistic surrogacy is merely legalized for couples that consists of opposite sex; same sex and single people are prohibited from practicing g altruistic surrogacy.17 In Queensland, the BLH & HN v SJW & MW (2010) QDC 439 involved gay individuals. The court ruled the surrogacy arrangement was purely legalized for the child’s best interests. 18 According to the Australian Law, commercial surrogacy is unlawful. This is because it considers the arrangement to commodify the surrogate mother and child, and benefits the rich families at the expense of the poor ones.19 Moreover, there are three ways of paying of considerable expenses could addressed. To begin with, there is an approach that entails considerable expenses that are essentially incurred can be paid, but that consent to reimburse reasonable expenses in unenforceable.20 Secondly, the Victorian Act maintains that whereas a woman should not receive a material advantage or benefit as a result of surrogacy to play the role of a surrogate mother, any part of the arrangement that maintains payment of the costs that surrogate mother incurs should be enforceable.21 These payments ought to include considerable healthcare expenses that are not offered by Medicare or private health insurance, lost earnings and associated legal expenses.22 This approach is adopted in the Western Australia Surrogacy Act, with expenses that may be included in the agreement that are displayed in the Act.23 Thirdly, there is a middle course that provides an agreement to reimburse considerable expenses essentially incurred is enforceable.24 It is vital to clarify that any consent in terms of the parentage and care of the shield is unenforceable, and that any payment of costs incurred is autonomous of the surrogacy arrangements, which are made concerning child’s care. In addition, counseling is vital for any parties that are intending to enter into a surrogacy arrangement.25 This is influential in allowing the parties to clearly understand the psychological and medical risks involved in the arrangement so as to be equipped with the relevant knowledge, which is necessary for making informed agreement prior to conception. Some of these risks include failure to renounce the child; disability issues; abnormality signs during pregnancy; and failure of the intended parents to take the child.26 In United States In the United States, surrogacy laws are said to vary from one state to another state. While some of the states have formed common laws that handle surrogacy matters, others use written legislation.27 Additionally, some of the states allow for the surrogacy and surrogacy agreements, while others do not simply enforce them. Here, those that enforce surrogacy tend to allow both altruistic and commercial issues, and make possible ways in which the target parents are recognized as the legal parents of the child.28 Besides, there are states that permit heterosexuals to enter become surrogate parents. Explicitly, there is a lot of support for gestational surrogacy, but traditional surrogacy has little legal support.29 Notably, Massachusetts has common laws regarding surrogacy issues, for instance, in 2001, there was a case involving Culliton v. Beth Israel Deaconess Med. Ctr.30 For the sake of legal issues, when a contract is completed, the surrogate mother’s residence, and place of birth are seriously considered.31 Hence, those people living in states that do not allow surrogacy can benefit for the surrogacy policies in the friendly states by working with surrogates that lie in friendly states.32 In Florida, the Florida District Court of Appeals upheld that the right to get involved in surrogacy contracts is only given to the married couples. For instance in 2000 case of Lowe v. Broward County33, the right to engage in surrogate parenting is preserved for the married couples, but unpermitted for the domestic couples.34 California permits both commercial and altruistic surrogacy, and often enforces gestational surrogacy agreements, and facilitates the establishment of legal parentage of the intended parents, regardless of theory sexual orientation or marital status.35 For instance, it accepts the issues of surrogacy contracts and maintains those contracts that involve gay, lesbian, transgender, and bisexual individuals (LGBT individuals). This state does not have statute laws that govern surrogacy, but it common laws that are used in the interpretation of these such cases. Its recent cases include Kristine H. v. Lisa R.36; Elisa B. v. Superior Court37; and K.M. v. E.G.38 that were decided in 2005. Here, the court decided that under the Uniform Parentage, any two women are entitled to become child’s parents. New York maintains that commercial surrogacy agreements break public policy and offers civil penalties to those that participate or facilitate a commercial surrogacy. Here, altruistic surrogacy contracts neither enforced nor penalized. however, the state recognizes gestational surrogacy, for example in the case involving Doe v. New York Bd. of Health.39 Here, the court did not need the provision of DNA evidence in order grant parental rights after gestation surrogate mother relinquishes her parental rights.40 Comparison with East Asia Law On the other hand, East Asian law handles the issues of surrogacy differently from the Australian and United States traditional law.41 Every year, there are reported cases of many Australians that benefit from surrogacy arrangement in East Asia. The country is well-known for medial tourist industry because of the excellent healthcare for cheaper prices than in the European and American countries. Unlike in Australia and United States, East Asia law has allowed for commercial surrogacy since 2000.42 China has prohibited gestational surrogacy because of the complications in terms of moral and ethical process. Moreover, china prohibits gestational surrogacy because of the possible risks to which surrogate mothers are exposed. There are also issues concerning the concern of the resultant babies.43 Till today, East Asia laws have not handled surrogacy matters, even though there is a bill presented to the parliament concerning assisted reproductive technology.44 There are high expectations that this bill will be passed next year. Besides, the legislation tries to regulate the doctors and clinics engaged in reproductive technologies and their association with potential surrogate mothers. The bill clarifies that women involved in commercial surrogacy will be entitled to the child agreed to bear. This law also does not define the payment of a surrogate mother in a situation of pregnancy complications and miscarriage. Additionally, the proposed bill maintains that women aged between 21 and 35 ages may be surrogate.45 In order to effectively compare the surrogacy laws, the paper has employed comparative legal theory. This theory is instrumental in illuminating on the possible differences and relations that exists between two or more sets of law. In such a case, the theory has clearly demonstrated that both Australian and United States laws and the East Asian laws on surrogacy matters are have certain similarities. For instance, both laws have a specific age of the prospective surrogate parents, which between 21 and 35 years.46 While the common laws in Australia and United States do not legalize commercial surrogacy, but only permits the altruistic surrogacy.47 On the other hand, the East Asian law treats commercial surrogacy differently from the Australian and United States common laws.48 The fact that the country permits commercial surrogacy has made it famous in the medical business; hence, it has become one of the tourist attractions in East Asia.49 Therefore, the comparative legal theory has indicated the relationship between common law and East Asian law in relation to surrogacy issues. Nevertheless, according to the theory, there are certain issues that need to be improved in the laws concerning surrogacy in United States, Australia and East Asia.50 First, the law has to consist of an aspect of counseling to the couple intending to enter into surrogacy consent. Moreover, the East Asian law should ban the issue of commercializing surrogacy as it sounds inhuman.51 The comparative legal theory is also inappropriate in that it has not brought out all the differences and similarities clearly. It has also failed to demonstrate the reasons and sources for the differences and similarities that exist in both sets of law.52 Therefore, the aforementioned issues are worth improving in order to achieve the desired comparison ways in which surrogacy issues are handled in East Asian law and the Australian and United States common law. Part 2 The Hague convention on the Civil Aspects of International Child Abduction was unanimously approved by 23 member states at the 14th session of the Hague conference.53 By 2003, there are 37 territories and countries that are members of the Hague Convention. The main objective the Hague Convention is “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”54 It is also aimed at securing the timely return of children that are illegally retained or removed in one Contracting State.55 The convention is also designed to reduce the negative psychological consequences of abduction by promptly returning the child and permitting the culture in which the child is familiar with to make decisions concerning the child’s custody, and thus, the child’s future. 56Impliedly, the convention is a return mechanism that provides a fast return of child to the habitual area, whereby the disputed issues like custody are settled.57 It is vital to examine the use of the convention in various legal traditions that include the civil law, common law, Islamic and east Asia laws. On civil law The Hague Convention on the Civil Aspects of International Child Abduction has established civil steps to take in the process of securing the return of an abducted child.58 According article 12 of the convention, the convention aims at satisfying the prevailing anxiety of the distressed parent. Here the convention’s concern is not on whether the child is unlawfully removed or retained, but with the fact that the abducted child is returned to the habitual place as fast as possible.59 For example, in France, courts of law have a substantially little obligation to protect the left-behind parent’s rights on cases of child abduction, if there is an elapse of one year.60 Here, it is adequate for the spouse after removing the child to indicate that the child has been settled in a new place, as per The Hague Convention’s article 13.61 Additionally, the French courts have an obligation of protecting the rights of a left-behind parent. Hence, unless a mother can prove in the child’s new environment of residence that his or her return would cause psychological o physical harm, or put the child in highly intolerable circumstance, for instance, in the case of Blondin v Dubois (2000)189 F3d 240.62 The return of a child can only take place when the mother has played a considerable amount of legal expenses. Upon return of the child, the local court takes the responsibility of establishing custodial and residential issues of the child.63 Left-behind parents can file for child’s custody in the French law courts, or file for enforcement and recognition of a Unites State court order. Imperatively, either of these alternatives can be construed as compliance to the foreign court’s jurisdiction. Besides, an attorney can offer advisory services on the most appropriate and applicable option to a specific case.64 Nevertheless, a court order issued in a United State court can be automatically applied in France. Instead, an exequatur; a French court order that enforces the United States’ decision ought to be acquired from a French court.65 Here, a left-behind parent who seeks an exequatur should employ an attorney in France to facilitate that. Moreover French local orders are automatically enforceable in France, and they may be appealed. However, the appeal does not essentially stop the execution of the initial judgment or a section of it. In a situation in which parents do not live together, under divorce, or legal separation, both parents are allowed a joint custody of a child. Besides, the French laws maintain that both parents must build personal relationships with the disputed child.66 Nonetheless, the judge can decide, based on the best interests of the child, that only either of the parents should assume the parental responsibilities and that the other one gets a contact right. Here, the judge assumes a full discretion of establishing the best interests of a child. Still, in France, sole custody is rarely allowed.67 On common law In England, child abduction entails both criminal and civil laws. Nevertheless, upon removal of a child from the United Kingdom, the issue of parental abduction is commonly considered as a civil matter.68 The Family Proceedings Rules of 199’s Part VI and The Child Abduction and Custody Act of 1985 make the Hague Convention effective in English laws. The Civil Legal Aid regulations of 1989 and legal Aid Act of 1988 offer monetary assistance for litigants.69 Besides, the Family Law Act of 1986 contains provisions essential in making court orders for children’s protection.70 On the other hand, the child abduction act 1984 maintains that it is a criminal offence for an individual that takes or sends a child away from the United Kingdom without the suitable agreement.71 Additionally, common law can charge a parent with a kidnapping offence. Additionally, if a parent wants to take a child to another place, they will need the other parent’s or the British courts’ permission.72 Still under common law, the fast decision-making decision under The Hague Child Abduction Convention works in favor of the child’s best interests, for instance in R v Kayani and Solliman [2011] EWCA Crim 2871.73 Moreover, it is the judiciary’s responsibility both at the appellate and trial levels to firmly monitor the development of return cases based on the convention.74 Appellate and trial courts must set and follow time programs so as to ensure that speedy establishment of the Hague applications. Likewise, central authorities are charged with a responsibility of to quickly process Hague applications. On Islamic Law Generally, the kingdom of Saudi Arabia is not a member of the Hague Convention on the Civil Aspects of International Child abduction.75 Moreover, there are no bilateral or international treaties that are enforced in Saudi Arabia.76 In Saudi Arabia, child custody is addressed on the basis of Islamic law. The basic concern of the Saudi Arabian courts is that a child must be brought up as per the Islamic faith. In fact, a majority of the child custody disputes in the country are settled in Islamic Sharia court.77 Seldom, a religious appeals court, that is the board of Grievances, rules on such disputes. Generally, Saudi courts do not allow non-Saudi women child’s custody.78 If the child’s mother is an Arab Muslim, judges will commonly deny her the child’s custody, except when she is residing in the country, or if the father is non-Muslim.79 Notably, all citizens in Saudi Arabia are treated as Muslims.80 Because Saudi women are denied the chance to marry non-Muslims, any custody disputes that arise between an American father and a Saudi mother will be heard in a Sharia court.81 Here, the Islamic rules of custody are applied and decisions are made on their merit. Saudi laws maintain that a child whose mother is Saudi and the father is a non-Saudi is not denied Saudi citizenship.82 Nevertheless, even in a situation in which an American father gets the child’s custody, he can still require permission from the Saudi mother to take the child from the country.83 Additionally, Saudi courts can hesitate to make a ruling on the child’s custody if both parents are not Muslims. Here, the case will be referred by the court to the family court in the parent’s country of origin.84 In case the court is pressured to handle such a situation, the court will hold that both parents should be extradited from Saudi Arabia to evade embarrassment and complications. Under Sharia law, a mother can keep her male children’s custody till 9 years, and 7 years for the female children.85 When a mother who resides in Saudi Arabia is given the child’s physical custody, the father can maintain a lawful custody, and is entitled to establish where children live and travel.86 On East Asian law The Peoples Republic of China (PRC) is not a member of the Hague convention on the Civil Aspects of Child Abduction. Besides, the country has no bilateral or international treaties that are enforced between United States and China, which handle the worldwide parental abduction of children.87 In case of the American citizens that travel to china, there is a jurisdiction of domestic law courts. Still in China, legally married parents have a common custody of their children.88 If the child’s parents are unmarried and cannot agree on their children’s custody, a court of law may grant custody on the basis of the child’s best interests.89 In terms of the foreign judgments, judgments and custody orders of the foreign courts are unenforceable in China.90 Moreover, there is restricted process to appeal a decision made by a lower court. In terms of legal visitation rights, a case in which custody is given out and decision has been made, the non-custodial parents’ rights of visitation are usually integrated in the court ordered decision, 91for instance, in the case of Zhang v. Zhang (2002) 210 CLR 49.92 Notably, dual nationality is prohibited in the East Asian laws. Those American citizens that are also Chinese nationals have found it hard to enter and depart from china on the United States passports.93 If one of the child’s parents refuses to permit one travel request, the parent is seen as an abducting parent in the US courts.94 Here, the law maintains that an abducted child in China is allowed to return to the US under both parent’s informed consent. This is also the case if the local courts in China maintain a US court’s ruling to legalize the left-behind parent sole custody.95 Comparative legal theory In this case, the paper has employed comparative legal theory so as to bring out differences and similarities that exist among the four legal traditions. Based on this theory, it is clear that the Hague Convention on the Civil Aspects of International Child Abduction has to some degree has provided a similar way of handling child’s abduction issues under these traditions. Each of the traditions works in favor of the child’s best interests in determining abduction cases.96 Moreover, the systems consider the child’s objection; parent’s consent; and the risk involved in the process returning the child to the habitual residential area. Nevertheless, there are certain differences existing in the legal systems. For instance, Saudi Arabia and china are not, members of the Hague Convention.97 In addition, the difference in the Islamic laws, East Asia, common law, and civil is based on the culture and political ideologies of the countries that practice them.98 For instance, child abduction cases in Saudi Arabia are based on the Islamic or religious laws, unlike in France and England where such issues are determined by the secular laws. However, the comparative theory ought to explain further on the sources of these differences. Conclusion The paper has demonstrated that common law tradition plays a major role in the development of surrogacy issues in Australia and United States. Besides, it indicates that both countries have the same way of handling surrogacy. Explicitly, the paper shows that United States treats commercial surrogacy differently depending on the state, while Australia has a unified legal system that prohibits commercial surrogacy. In terms of The Hague Convention on the Civil Aspects of International Child Abduction, the civil, common, East Asia and Islamic laws have the same conditions and defense for the child abduction cases. Nevertheless, some of these legal traditions differ because the countries in which they are practiced are not members of the convention. Furthermore, the comparative legal theory clearly demonstrates existing differences and similarities. It justifies that the differences are as a result of the culture, social, economical, religious, and political factors. 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(2005) 37 C.4th 156 Lowe v Broward County (2000) 766 So.2d 1199 R v Kayani and Solliman (2011) EWCA Crim 2871, England Zhang v. Zhang (2002) 210 CLR 491 Legislation International Child Abduction Remedies Act, 42 USC 11601 Read More