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A Public International Law approach to safeguard nationality for surrogate-born children

Ní Ghráinne, Bríd; McMahon, Aisling

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Authors

Bríd Ní Ghráinne

Aisling McMahon



Abstract

International surrogacy agreements involve a child born to a surrogate mother who is of a different nationality to the commissioning parent(s) in a state other than that of which the commissioning parent(s) are nationals or reside. Many of these arrangements lead to children being born stateless, which deprives that child of many rights that are directly linked to one's nationality as well as causing significant practical problems, such as difficulty in obtaining a passport. In undertaking the first Public International Law analysis of nationality and international surrogacy agreements, we map out how various provisions can be used to guarantee protections against statelessness. Accordingly, we argue that the drafting of a proposed new convention is not the ideal solution in this respect, and should not be to the detriment of the ratification and implementation of the relevant conventions that we identify; in particular, the 1989 Convention on the Rights of the Child. We argue that these protections offer the most meaningful protection in the short term and should be used to inform any future protections under the proposed Convention. We conclude by encouraging the advancement of Public International Law arguments when petitioning in a domestic context on behalf of stateless international surrogate children.

Citation

Ní Ghráinne, B., & McMahon, A. (2017). A Public International Law approach to safeguard nationality for surrogate-born children. Legal Studies, 37(2), 324-342. https://doi.org/10.1111/lest.12146

Journal Article Type Article
Acceptance Date Jun 29, 2016
Online Publication Date Dec 15, 2016
Publication Date Jun 1, 2017
Deposit Date Oct 2, 2017
Publicly Available Date Oct 13, 2017
Journal Legal Studies
Print ISSN 0261-3875
Electronic ISSN 1748-121X
Publisher Cambridge University Press
Peer Reviewed Peer Reviewed
Volume 37
Issue 2
Pages 324-342
DOI https://doi.org/10.1111/lest.12146
Public URL https://durham-repository.worktribe.com/output/1343933
Related Public URLs http://eprint.ncl.ac.uk/226616

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Copyright Statement
This article has been published in a revised form in Legal studies https://doi.org/10.1111/lest.12146. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © 2016 The Society of Legal Scholars






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