Applicable Law To the Legal Parentage of a Child Born Through International Surrogacy

Abstract

The method of surrogacy has always been the subject of legal, social, religious, and moral debates since its inception and has ultimately been prohibited in many countries. However, the global infertility rate of approximately 17.5% has led to the continued existence of surrogacy as a strong alternative to traditional assisted reproductive methods. It is estimated that around 20,000 children are born every year through this method. Many of these births are because of agreements between prospective parents residing in countries where the practise is prohibited and surrogate mothers residing in countries where it is permitted. Therefore, the initial challenge encountered at the birth of a child is the issue of establishing parentage between the prospective parents and the child. Although prohibited in Turkey, the legality of surrogacy in countries such as Greece, the Turkish Republic of Northern Cyprus, Ukraine, and Georgia increases the likelihood of disputes related to international surrogacy before the Turkish courts. In this context, the article provides general information about surrogacy, examines how it is regulated in Turkish law and foreign legal systems, summarises the European Court of Human Rights' approach, outlines the work of The Hague Conference on Private International Law, and determines the position of article 16 of Turkish International Private and Procedural Law (M & Ouml;HUK). As a result, since the current form of article 16 of M & Ouml;HUK does not allow to reach a law which establishes legal parentage between prospective parents and children, amendments have been proposed regarding the article.