Cross-Border Surrogate Motherhood From A Criminal Law Perspective

The role of state in an economic model and its consequence in genealogy fuse with the sovereignty of the state, coined as bio-politics and bio-power by Michel Foucault, as a power over life and death. To illustrate, punishing abortion or allowing new productive technologies could be regarded as issues lying on the sovereignty of the state. Surrogate motherhood appears as one of the challenges of the 21th century due to these two concepts. As opposed to earlier times, the current more advanced stage of scientific, technological, communication and traveling possibilities plays an essential role. Furthermore, the legal perception of surrogacy in a global perspective lies on the grey area. In other words, whether it is legal or prohibited varies from country to country, which creates a legal loophole. Here is the way in which the advent of surrogate motherhood defies the state’s sovereignty on its bio-politics and bio-power. Cross-border surrogate motherhood cases in law comes first at the legal recognition of the child by the country of the requesting people. As a matter of fact, its legal consequences appear firstly at civil law, inter alia, family law. Criminal law, with its subsidiary character, rises up by basing on the concepts, the definitions and the presumptions of civil law. Seeing these developments, to ensure individual human rights and prevent them from being victims or perpetrators of any crimes due to the cross border practiced surrogate motherhood cases, the question on where criminal law is supposed to stand rises, with which this study aims to explore. To be more precise, it mainly explores surrogacy as a possible criminal law issue. Additionally, the necessity on creating international legal documents in any form will be questioned.