Best interests as a rule of procedure: Reflection on different regulatory responses to surrogacy

This paper examines the extent to which the best interests of the child, under Article 3 UNCRC, has been utilised as a rule of procedure when developing legislative responses to surrogacy. Three jurisdictions are examined which have adopted vastly different regulatory responses to surrogacy: Sweden, impliedly prohibiting surrogacy; England and Wales, permitting surrogacy on an unenforceable basis; and California, providing for enforceable surrogacy agreements. Through analysis of the development of the legislation in each jurisdiction, it is argued that the concept of best interests carries a significant risk of being a term of empty rhetoric and seeks to reinforce the value of using child’s-rights impact assessments to ensure a child-centric approach to surrogacy regulation.