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International Commercial Gestational Carriage: enforcement of contracts for services in the European Union

Stanga, Evita LU (2013) JAEM03 20131
Department of Law
Abstract
The options of procreation, reproduction or bringing into existence a child of a particular parentage, including motherhood, are related to the advancement of science. Nowadays it is possible for a woman to become pregnant and afterwards give birth to a child which, by using medical assistance, is actually made from other womans oocyte. The term gestational carriage refers to being pregnant and thus carrying a child gestationally which, based on a contract, is done as a service for another woman who has intended to become mother of the child.
The right to move and receive services in the European Union is hindered if no enforcement of contracts for services of international gestational carriage can take place across member states’... (More)
The options of procreation, reproduction or bringing into existence a child of a particular parentage, including motherhood, are related to the advancement of science. Nowadays it is possible for a woman to become pregnant and afterwards give birth to a child which, by using medical assistance, is actually made from other womans oocyte. The term gestational carriage refers to being pregnant and thus carrying a child gestationally which, based on a contract, is done as a service for another woman who has intended to become mother of the child.
The right to move and receive services in the European Union is hindered if no enforcement of contracts for services of international gestational carriage can take place across member states’ borders. Movement is not free if it is subsequently leaving the concluding parties of these contracts – intended mother and gestational carrier – and the children born as a result of the consequential services in limping legal situations.
This thesis, with the aim of applying law to subject matter of this thesis, characterizes arrangements for gestational carriage as the essence of employing an assisted reproduction method. It illustrates how differently the European Union states have reacted to the use of this procreation service and the interest in legalization of children born as a result of this. Concluding that member states’ substantive laws do not support the enforcement of these contracts internationally, this thesis focuses on an overview of how European Union law relates to the matter. It demonstrates that European Union has not initiated and implemented suitable arrangements in this situation. It has not still used its competence of creating private international law measures that could, by allowing each state to preserve their traditions in the sensitive issue of employing procreation methods, ensure the best interests for children created in a nontraditional way.
This thesis considers that European Union may draw inspiration for reconciliation of the involved interests from several legal instruments of other organizations that address similar matters. The thesis mainly focuses on the Hague Conference on Private International Law measures even if these measures are not aimed at nor are incidentally relevant for enforcement of contracts for services of international commercial gestational carriage. This is true not only because of scope of application for these instruments but also due to the fact that, if they actually offer a workable legal status establishment for children, as, for instance, adoption, they do not ensure the realization of rights for use of nontraditional procreation methods across borders in the European Union. Thus substantive law of all its states regarding the receiving and preserving of status for children born as a result of gestational carriage arrangements in a unified way are not accorded. Convergence is a utopian idea, considering that in various cultures the understanding of what is the correct attitude towards women, their way of creating children and how to correctly treat these children, for various reasons as, for instance, religion, is divergent. It is utopian to imagine that there will be no use of right to procreate provided for in international human rights documents by employing methods that are as convenient as possible.
From this, the thesis concludes that in the absence of globally applicable solutions the European Union may, according to its competence and the arsenal of legal instruments available to it, sufficiently facilitate enforcement of contracts for services of international commercial gestational carriage in its territory by providing not only theoretical free movement and freedom to receive services but also the real implementation of these rights. It may do so by ensuring that private international law harmonized by its regulations assists in mutually recognizing legal statuses necessary for the children born as a result of employing gestational carriage arrangements to have, at the very least, a mother that was intended and a state that can ensure their best interests for the rest of their lives. (Less)
Please use this url to cite or link to this publication:
author
Stanga, Evita LU
supervisor
organization
course
JAEM03 20131
year
type
H2 - Master's Degree (Two Years)
subject
language
English
id
3732699
date added to LUP
2013-09-06 14:56:25
date last changed
2013-09-11 08:34:54
@misc{3732699,
  abstract     = {The options of procreation, reproduction or bringing into existence a child of a particular parentage, including motherhood, are related to the advancement of science. Nowadays it is possible for a woman to become pregnant and afterwards give birth to a child which, by using medical assistance, is actually made from other womans oocyte. The term gestational carriage refers to being pregnant and thus carrying a child gestationally which, based on a contract, is done as a service for another woman who has intended to become mother of the child.
The right to move and receive services in the European Union is hindered if no enforcement of contracts for services of international gestational carriage can take place across member states’ borders. Movement is not free if it is subsequently leaving the concluding parties of these contracts – intended mother and gestational carrier – and the children born as a result of the consequential services in limping legal situations.
This thesis, with the aim of applying law to subject matter of this thesis, characterizes arrangements for gestational carriage as the essence of employing an assisted reproduction method. It illustrates how differently the European Union states have reacted to the use of this procreation service and the interest in legalization of children born as a result of this. Concluding that member states’ substantive laws do not support the enforcement of these contracts internationally, this thesis focuses on an overview of how European Union law relates to the matter. It demonstrates that European Union has not initiated and implemented suitable arrangements in this situation. It has not still used its competence of creating private international law measures that could, by allowing each state to preserve their traditions in the sensitive issue of employing procreation methods, ensure the best interests for children created in a nontraditional way.
This thesis considers that European Union may draw inspiration for reconciliation of the involved interests from several legal instruments of other organizations that address similar matters. The thesis mainly focuses on the Hague Conference on Private International Law measures even if these measures are not aimed at nor are incidentally relevant for enforcement of contracts for services of international commercial gestational carriage. This is true not only because of scope of application for these instruments but also due to the fact that, if they actually offer a workable legal status establishment for children, as, for instance, adoption, they do not ensure the realization of rights for use of nontraditional procreation methods across borders in the European Union. Thus substantive law of all its states regarding the receiving and preserving of status for children born as a result of gestational carriage arrangements in a unified way are not accorded. Convergence is a utopian idea, considering that in various cultures the understanding of what is the correct attitude towards women, their way of creating children and how to correctly treat these children, for various reasons as, for instance, religion, is divergent. It is utopian to imagine that there will be no use of right to procreate provided for in international human rights documents by employing methods that are as convenient as possible.
From this, the thesis concludes that in the absence of globally applicable solutions the European Union may, according to its competence and the arsenal of legal instruments available to it, sufficiently facilitate enforcement of contracts for services of international commercial gestational carriage in its territory by providing not only theoretical free movement and freedom to receive services but also the real implementation of these rights. It may do so by ensuring that private international law harmonized by its regulations assists in mutually recognizing legal statuses necessary for the children born as a result of employing gestational carriage arrangements to have, at the very least, a mother that was intended and a state that can ensure their best interests for the rest of their lives.},
  author       = {Stanga, Evita},
  language     = {eng},
  note         = {Student Paper},
  title        = {International Commercial Gestational Carriage: enforcement of contracts for services in the European Union},
  year         = {2013},
}