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Fair Trade as an Instrument for the Regulation of Risks in the Cross-Border Surrogacy Market

Sharon Bassan


Cross-border surrogacy transactions [CBST] entail several risks for the participants and the resulting child and, consequentially, for their states. In the absence of clear standards or coherent legal rules, the global industry depends on private contracts, the result of negotiations between parties from different countries with unequal bargaining power, which distributes risks and benefits unfairly. In this article I suggest a Fair Trade model as an instrument for the regulation of these transactions.
The Fair Trade model addresses market failures and the externalization of risks. The basic principles of Fair Trade include trading process according to proper standards of quality and ethics based on a certification mechanism, a minimum price to producers, direct purchasing, transparent rules and fair distribution. In addition to quality and ethics, Fair Trade is a developmental tool, ensuring more of the economic benefits to producers in the global south.
Applying these elements on the cross-border surrogacy market can be fruitful for the regulation of risks entailed in CBST. Certification of surrogacy services can ensure proper medical standards and fundamental rights, and decrease health risks; direct purchasing through democratically elected surrogates’ co-operatives could improve the surrogates’ power of negotiation and decrease contractual risks; a minimum price could guarantee a greater income to surrogates, and social premium could be used to fund communal projects and help surrogates to improve their social position. Finally, transparency can address administrative risks and ensure that children's rights are not violated.

Postdoctoral fellow, University of Haifa, The Center of Gender, Law and Policy. bassansh@post.tau.ac.il.

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