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The prohibition of surrogate motherhood in France

The French pro­hi­bi­tion of sur­ro­gate moth­er­hood, rest­ing on moral and eth­i­cal con­sid­er­a­tions, rais­es com­plex issues of pri­vate inter­na­tion­al law.

Sur­ro­gate moth­er­hood has been pro­hib­it­ed in France since 1991, under a deci­sion by the Cour de cas­sa­tion (France’s high­est court), (Cass. Ass. plén., 31/05/1991). This pro­hi­bi­tion was con­firmed in the bioethics law of 1994, and is cod­i­fied in arti­cle 16–7 of French Civ­il Code (“Civ­il Code”). Arti­cle 16–9 of the Civ­il Code makes this a pro­hi­bi­tion of pub­lic order (In France, pro­hi­bi­tions of ordre pub­lic or pub­lic order are manda­to­ry rules cre­at­ed uni­lat­er­al­ly by the state to pro­tect fun­da­men­tal val­ues of the soci­ety, and from which par­ties have no free­dom to dero­gate. A for­eign law applic­a­ble under a con­flict of laws analy­sis would be evict­ed if con­trary to a manda­to­ry rule). A sur­ro­ga­cy con­tract is null and void, and vio­la­tions are pun­ished by civ­il and crim­i­nal sanc­tions (civ­il sanc­tions are described in arti­cles 311–25, 325 and 332–1 of the Civ­il Code and crim­i­nal sanc­tions at arti­cles 227–12 §3 and 227–13 of the Penal Code).

The pro­hi­bi­tion is jus­ti­fied by dif­fer­ent moral and eth­i­cal con­cerns: to pre­vent chil­dren from becom­ing com­modi­ties trad­ed as mer­chan­dise between infer­tile cou­ples and sur­ro­gate moth­ers; to pro­tect the inter­est of chil­dren who are psy­cho­log­i­cal­ly at risk in such trans­ac­tion; and to pre­vent the exploita­tion of sur­ro­gate moth­ers who must relin­quish parental rights to the child after giv­ing birth. Sur­ro­gate moth­ers are usu­al­ly from low­er eco­nom­ic stra­ta and are eco­nom­i­cal­ly exploit­ed in this trans­ac­tion. Sta­tis­ti­cal­ly there is an inher­ent social divi­sion in this prac­tice. This is evinced by the fact that most sur­ro­ga­cy con­tracts require com­pen­sa­tion because very few women would bear some­one else’s child for free. This social divi­sion is not new – sur­ro­gate moth­ers were slaves in the days of the Bible and Ancient Rome.

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The Amendment of Spain’s Arbitration Act: A Promising But Unfinished Agenda

By Guiller­mo Bayas Fer­nán­dez
Attor­ney-at-law in Spain
Fun­dación Rafael del Pino schol­ar
NYU LL.M. Can­di­date, Class of 2011


Last Sep­tem­ber, the Span­ish Gov­ern­ment sent to the Par­lia­ment a bill (the Bill) to reform the cur­rent Span­ish Arbi­tra­tion Act (Ley 60/2003, de 23 de diciem­bre, de Arbi­tra­je), which is now being dis­cussed in Con­gress. The Bill improves dif­fer­ent aspects of the exist­ing reg­u­la­tion, main­ly those con­cern­ing the action to set aside the award, arbi­tra­tors’ lia­bil­i­ty, arbi­tra­tion of cor­po­rate dis­putes and the effect of insol­ven­cy pro­ceed­ings on arbi­tra­tion agree­ments. How­ev­er, the pos­si­ble sup­pres­sion of dis­sent­ing opin­ions prej­u­dices arbi­tra­tion and the reg­u­la­tion on chal­lenge of judi­cial juris­dic­tion favors friv­o­lous attempts to avoid abid­ing by arbi­tra­tion agree­ments. respec­tive  Addi­tion­al­ly, the pro­posed assign­ment of func­tions among judi­cial bod­ies in arbi­tra­tion issues lacks coher­ence and does not cre­ate a long-demand­ed uni­fi­ca­tion appeal on arbi­tra­tion mat­ters. While this arti­cle wel­comes some of the intend­ed mod­i­fi­ca­tions, it rais­es con­cerns that Spain might be los­ing a unique oppor­tu­ni­ty to adopt a mod­ern reg­u­la­tion that would advance its chances of becom­ing a prime inter­na­tion­al arbi­tra­tion seat.

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Louis Henkin in JILP

In mem­o­ry of Louis Henkin, who died last month in New York, I recent­ly took to the archives, to see whether any of his work had found its way into the NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics.  While Henkin’s byline nev­er appeared in any of JILP’s forty-two vol­umes, his work nev­er­the­less left a mark on our pages.

In the sev­enth vol­ume of JILP, a review of Henkin’s For­eign Affairs and the Con­sti­tu­tion rec­og­nized the supreme impor­tance of this work to the field of U.S. for­eign rela­tions law.  (7 N.Y.U. J. Int’l L. & Pol. 203.)  Henkin, Stan­ley Fut­ter­man wrote, spoke with “the nat­ur­al mod­esty and courage of the true teacher.”  But our review­er soon takes  a more crit­i­cal stance in light of Henkin’s dis­cus­sion of Viet­nam.

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