Cross-Border Surrogacy Motherhood in Comparative Law and The Problem of Legal Parenthood

Surrogacy motherhood emerges as one of the popular topics in private international law. The reasons are that surrogacy motherhood is a complex phonemonen both in social and legal aspects and domestic legal approaches differ widely between jurisdictions. Some countries disallow the surrogacy motherhood, some countries allow it with some conditions, some other countries remain unregulated. This study first determines these countries in theorical approaches. These theoretical approaches clearly demonstrate that prohibition of surrogacy do not stop this activity. On the contrary, intended parents living in a country where surrogacy is prohibited travel to the countries where surrogacy is permitted. This situation injects foreigness to surrogate motherhood and makes it the subject of private international law and therefore brings to fore the problem of conflict of laws. This study clarifies these problems vis a vis domestic jurisprudence and with the aid of the surveys conducted with the those involved in the surrogacy process. The surveys and case-law demonstrate that the most important problem in the practice of surrogacy is who the legal parents of the child should be and consequently to determine the nationality of the child. It is emphasized how this issue is clarified both in common and civil law jurisdictions.