Book Review: International Assisted Reproductive Technology

International Assisted Reproductive Technology
By Stephen Page
Published by American Bar Association
ISBN-10: 1639055037, ISBN-13: 978-1639055036
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In 2005, the American Bar Association (ABA) published one of the first legal resources on assisted reproduction technology, written for legal practitioners within the American context. Almost twenty years later, the ABA has published a practical guide for legal practitioners navigating international assisted reproduction technology – International Assisted Reproductive Technology – written by Stephen Page, not an American, but rather an Australian lawyer.

The primary focus is transnational surrogacy arrangements, with Page carefully explaining various legal challenges befalling intended parents, deftly explaining the importance of recognising the lack of international legal architecture and confusing domestic legal frameworks, encumbered by various conventions and agreements, at times conflicting with national legislation. Page's almost forty years of experience within the Australian context clearly guides the book, as he explains common destinations for transnational surrogacy arrangements and what legal practitioners should consider when advising their clients.

Most of the book is dedicated to outlining the relevant legal frameworks in place and discussing key cases and statutes. At almost 400 pages, the book is exceptionally long, rivalling the length of many edited collections on regulatory approaches to surrogacy. It was clear that the text could have been easily shortened by 100 pages if Page cut his inclusion of long passages and quotes from caselaw or statutes, as they rarely added anything to his discussion. This was especially seen in Chapter 2 and Chapter 7, where I had to sift through pages and pages of quotes before Page's point was clear. If their inclusion was indeed necessary, further scaffolding to indicate their relevance more clearly or formatting the text to indicate where the reader should focus their attention would have been hugely beneficial.

There are many commendable features of Page's book; these include his consistent terminology throughout the almost 400-page tome, the bullet point 'Take Away' sections concluding each chapter, the clear tables providing direct and concise information, and at times the almost playful tone. Indeed, I was instantly struck with the relaxed tone Page adopted and reminded myself that this book was not intended for an academic audience. Admittedly, this tone was quite fitting in Chapter 18 (by far my favourite), where he outlines the 'sharks in the water', the unscrupulous surrogacy intermediaries taking advantage of the heightened vulnerability of intended parents, resulting in various scandals. Earlier in the book, he foreshadows these 'sharks', when explaining how despite the preference for 'safe' surrogacy destinations, intended parents will also choose riskier destinations, ultimately because of the strong desire to have a child (what Page terms 'baby lust').

The book's structure is less straightforward and coherent than anticipated. For example, Chapter 5 outlines the difficulties arising from the inconsistent terminology associated with assisted reproductive technology. Like legal perspectives on surrogacy, the terminology arises from values or ideologies varying significantly from one cultural context or country to another. The chapter feels oddly placed here, after four chapters discussing assisted reproductive technology. I wondered why it was not either included in Chapter 1, outlining the international law architecture, or immediately thereafter.

Chapter 10 describes the clear need for knowledgeable and current legal advice on a jurisdiction-by-jurisdiction basis, and so would have been better placed after Chapter 4 and its discussion highlighting the importance of legal advice across jurisdictions, with Page using case studies to demonstrate how various legal regimes clash with each other during transnational surrogacy arrangements. For example, intended parents from New South Wales (Australia) breach domestic law when engaged in commercial surrogacy – even if that arrangement is legal in the destination jurisdiction, like California.

He concludes the chapter with an illustrative discussion on the impact of the Baby Gammy saga (see BioNews 766) on Cambodian legislation; following this case, Thai surrogacy intermediaries moved to Cambodia, where there were no restrictions on surrogacy. However, in 2016, the Cambodian government announced their plans to restrict the growth of a commercial surrogacy market, and yet has not actually prohibited surrogacy to date, but instead relies on laws concerning fraud, adoption, and human trafficking.

Finally, Chapter 7 describes the difficulties faced by LGBTQIA+ intended parents engaged in transnational surrogacy arrangements. Page provides an exceptionally comprehensive table outlining various jurisdictions' many domestic legal barriers (criminalisation of same-sex relationships, difficulties in accessing treatment, etc) and their amenability to recognising parenthood for LGBTQIA+ people, whether automatic or via adoption. However, it is not until Chapter 12 that a discussion on legal parenthood is seen. Much like the discussion on terminology, it would have been better to have a description of legal parenthood preceding the issues faced by LGBTQIA+ people.

Likely due to Page's tone and experience, there were some parts of the book that were quite Western-centric. While Page acknowledges that the book was written on the lands of the Jagera and Turrbal peoples in the introduction, it would have been beneficial for some continued acknowledgement of why Australia has the highest population proportionally of migrants, referring to its establishment as a settler-colonial state. Some comments about Majority World countries were unnecessary and signalled a level of Western superiority. For example, why mention that even Somalia is a signatory to the 1989 UNCRC (while the United States is not)? The shock underpinning a passing comment on North Korea's low maternal mortality rate was equally unwarranted.

As previously mentioned, the 'Take Away' sections were a highlight of the book, especially given their succinct and bullet form structure. Inexplicably, Page does not provide this strong ending for Chapter 6, where he discusses a major tension in surrogacy regulation – establishing parenthood – and where it would likely be very welcome. Other times, these sections were incomplete or inconsistent with the chapter purportedly being concluded. For example, in Chapter 20, Israel is not mentioned in the preceding sections, yet the country's 'large increase in the number of posthumous use applications' is noted inexplicably in the 'Take Away' section (see BioNews 1231).

While there is some discussion of other aspects of assisted reproductive technologies, the focus is overwhelmingly on surrogacy, and perhaps this should be reflected in a subtitle. Ultimately, the book is suitable for legal practitioners new to surrogacy and curious potential intended parents wanting an overview of various legal pitfalls arising out of transnational surrogacy arrangements. I would be very keen to see this book as a 'living document', allowing for rapid updates as surrogacy regulation continues to dominate political and legal discussions worldwide.

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