COMMERCIAL SURROGACY IS THE SALE OF CHILDREN?: AN ARGUMENT THAT COMMERCIAL SURROGACY DOES NOT VIOLATE INTERNATIONAL TREATIES

Rates of commercial surrogacy have risen with the proliferation of in vitro fertilization. The process is unique in allowing intending parents the opportunity to raise a child of their own genetic material even if they cannot procreate through their own bodies. However, commercial surrogacy has been abused and caused physical and legal problems for all parties involved. In an attempt to remedy the problems associated commercial surrogacy, some scholars and humanitarians claim commercial surrogacy is already illegal under an international treaty that bans the sale of children. These legal scholars and human rights advocates argue that commercial surrogacy is the sale of children as banned by The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. However, this paper argues that commercial surrogacy is not the sale of children as described in the Protocol, and any legal challenge to commercial surrogacy based on the Protocol is not only futile but distracts from the treaty's purpose. Ultimately, this paper argues that the necessary international legal protections already exist without banning commercial surrogacy as the sale of children.