1.Introduction

The main aim of this special issue is to propose new ways of thinking about health law as a field of law and academic sub-discipline. The articles included in the issue provide a wide array of perspectives through which the past and the future of health law can be viewed. They range from specific case studies focused on informed consent to medical treatment in English law, deliberations about the nature and disciplinary boundaries of health law. This article complements those scientific studies by focusing specifically on health law at transnational level. Cross-border medical travel has transformed individual lives, healthcare systems, and social structures across the world. Each year, between 5.5 millionK. Pollard, ‘IMTJ’s Latest Estimate on Leading Destinations by Medical Tourism Revenue’, International Medical Travel Journal, 16 May 2018. and 15 millionInternational Medical Tourism Journal: https://www.imtj.com; P. Jessup, Transnational Law (New Haven: Yale University Press, 1956). patients worldwide cross national borders to seek medical treatment. For many, medical travel offers the only opportunity to receive health services, which are unaffordable or unavailable in their home countries. The article proposes a new lens through which the processes that shape transnational health law can be analysed. It is different from a typical academic article in that it has a programmatic character, focusing primarily on setting out a detailed intellectual agenda that can help reimagine the role and nature of transnational health law in future. The article focuses on transnational reproductive health, which constitutes a significant part of cross-border health services.

Transnational Reproductive Health Law (TRHL) is defined here broadly as a complex set of laws that impact on cross-border reproductive health issues, determinants and solutions. TRHL combines aspects of public and private international law as well as domestic legal norms affecting cross-border reproductive healthcare. This definition draws on the early conceptions of transnational law as a body of law that encompasses ‘all law which regulates actions or events that transcend national frontiers… [including] other rules, which do not wholly fit into such standard categories’.P. Jessup, Transnational Law (New Haven: Yale University Press, 1956), 1-8. At the same time it is understood to include norms ‘that are able to traverse previously separate jurisdictions’.C. Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure (Cambridge: Cambridge University Press, 2016). The inclusion of public and private structures as well as a variety of hybrid public/private structures in the definition of TRHL reflects a well-established trend in transnational law theory.P.C. Zumbansen, ‘Transnational and/in International Law’, in F. Hoffman & A. Orford (eds.), Oxford Handbook of International Legal Theory (Oxford: Oxford University Press, 2014); P. Zumbansen, ‘Administrative law’s global dream: Navigating regulatory spaces between “national” and “international”’, International Journal of Constitutional Law 11(2) (2013), 506-522; C. Joerges, I.-J. Sand & G. Teubner (eds.), Transnational Governance and Constitutionalism (Oxford: Hart Publishing, 2004); P.F. Kjaer, ‘The Structural Transformation of Embeddedness’, in C. Joerges & J. Falke (eds.), Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets (Oxford: Hart Publishing, 2011), 85-104. Adopting a broad definition of TRHL offers the opportunity to analyse the role of both state and non-state actors, including private and public professional organisations involved in the regulation and delivery of reproductive healthcare in the process of transnational norm making. For the purposes of this article, reproductive healthcare is understood to include not only health services affecting reproductive health, such as assisted reproduction, surrogacy, or abortion, but also health determinants, such as necessary information and corollary rights affecting health and well-being.According to this definition, corollary rights, including parental or citizenship rights will form part of reproductive health law. While this may seem too wide, the reason for including such rights in the definition of TRHL is that difficulties in establishing these entitlements and responsibilities can, and in fact do in some instances, hinder access to fertility treatment of some persons. As such they should be seen as legal determinants of health.

The study of TRHL constitutes a particularly vital area of scholarly inquiry. First, it concerns a pressing and contested social issue.M.Z. Bookman & K.R. Bookman, Medical Tourism in Developing Countries (New York: Palgrave 2007); L. Culley & N. Hudson, ‘Fertility Tourists or Global Consumers? A Sociological Agenda for Exploring Cross-border Reproductive Travel’, International Journal of Interdisciplinary Social Sciences 4(10) (2010), 139-150; D. Botterill, G. Pennings & T. Mainil (eds.), Medical Tourism and Transnational Health Care (Basingstoke: Palgrave Macmillan 2013); F.W. Twine, Outsourcing the Womb: Race, Class and Gestational Surrogacy in a Global Market (New York/London: Routledge, 2015); K.S. Bhangra, ‘India’s Lower House Passes Bill Banning Commercial Surrogacy’, BioNews, 14 January 2019. This is because, in addition to cost-effectiveness, transnational reproductive healthcare offers patients the chance to access treatments that are either prohibited by law or unavailable to a particular group of patients in their home countries.G. Pennings et al., ‘Cross-border Reproductive Care in Belgium’, Human Reproduction 24(12) (2009), 3108-3112; S. Bergman, ‘Fertility Tourism: Circumventive Routes that Enable Access to Reproductive Technologies and Substances’, Signs: Journal of Women in Culture and Society 36(2) (2011), 280-288. These patients include gay couples or single women, who are not eligible for fertility treatment in their countries, or women who have restricted access to abortion services. Indicatively, it is estimated that up to 30,000 Polish women cross national borders every year to access abortion services illegal at home.M. Dubrowska, ‘Polskie aborcje w klinikach całej Europy’, Gazeta Wyborcza 27.08.2010, http://wyborcza.pl/1,76842,8300922,Polskie_aborcje_w_klinikach_calej_Europy.html. At the same time, a large European study found that 54.8% of patients seeking assisted reproduction travel abroad to avoid domestic legal restrictions.F. Shenfield et al., ‘The ESHRE Taskforce on Cross Border Reproductive Care. Cross border Reproductive Care in six European Countries’, Human Reproduction 25 (2010), 1361-1368. The Internet also enables patients to receive health services at home, which is how many women access emergency contraceptives or abortion pills in countries where abortion is restricted or illegal.T. Hervey & S. Sheldon, ‘Abortion by Telemedicine in Northern Ireland: Patient and Professional Rights across Borders’, Northern Ireland Law Quarterly 68, Spring 1 (2017), 1-33. Secondly, TRHL has particular explanatory value for the advancement of wider theoretical constructions of transnational law because, as reproductive rights are not uniformly accepted at the international level, their gradual recognition can be easily identified. Thirdly, the fact that cross-border reproductive services heavily rely on, and are shaped by, both private and public law actors makes it a perfect example of the processes of transnational law formation.

In this article, I propose a new approach to study transnational reproductive health law. I suggest that future scholars should focus on developing a coherent conceptual framework that captures not only the traditional ‘top-down’ lawmaking processes, such as international law making and diffusion of international norms in domestic settings, but also the horizontal and bottom-up formation of transnational reproductive health law. Furthermore, I propose that there are three distinct elements that constitute the core of transnational reproductive health law. Those are the subjects, principles, and structures of TRHL, which remain mainly hidden and can be considered the three cornerstones of a process, in which TRHL has experienced constitutional formation. The process of transnational constitutional formation (‘constitutionalisation’)A. Peters, ‘The Merits of Global Constitutionalism’, Indiana Journal of Global Legal Studies 16(2) (2009), 397-411. is defined here as the emergence of higher-ranked norms and principles that are applied by private and state agencies to define the role, powers, and structures of different actors involved in transnational reproductive healthcare. The basic function of these norms is the stabilisation of the TRHL system through mechanisms that determine: 1) the subjects of TRHL, 2) the rights and obligations they have, 3) the institutional structures that protect them. It is argued here that the recognition and critical analysis of these three elements should become one of the main objectives for researchers working on transnational health law. The normative process, in which the three constitutive elements in the field of TRHL assume constitutional prominence, is termed visibilisation. Visibilisation also refers to the analytical approach to studying TRHL, focused on uncovering the processes underlying the gradual recognition of subjects, principles, and structures of TRHL. Such conceptualisation does not mean that constitutionalisation is a linear process leading to systemic coherence and morally acceptable outcomes. The process is meandering, often circular or ruptured by unexpected failures and setbacks. It can also result in inequalities and injustices in healthcare. However, the conceptual framework based on the idea of visibilisation, i.e. the uncovering of the hidden constitutional subjects, principles and structures, offers scholars a novel methodological tool, which enables a systematic and coherent analysis of the breadth and diversity of TRHL.

The article begins by examining the range of social and legal challenges in the field of transnational reproductive health law. In particular, it shows how the invisibility of subjects, principles, and structures relating to cross-border reproductive health care can have serious consequences for individuals and healthcare systems. It then summarises the scholarly responses to these challenges, identifying their main strengths, weaknesses and any existing gaps in scholarship and literature. The article draws on existing research in different fields of academic inquiry addressing the problems of the TRHL, including health law, reproductive rights, transnational legal theory, and sociology. In the final part, the article examines in detail the directions of future research into TRHL, focusing on its three constitutive elements: invisible subjects, invisible principles, and invisible structures. Consequently, the article sets out a comprehensive interdisciplinary research agenda for TRHL as a field of sociology of health law.

2.Social, legal, and conceptual challenges in the field of transnational health law

2.1.Social and legal challenges relating to TRHL

Cross-border globalised healthcare may be considered liberating and empowering as it offers opportunities to people who face difficulties accessing healthcare at home. However, ‘reproductive tourism’ has also been redefined as ‘reproductive exile’R. Matorras, ‘Reproductive Exile versus Reproductive Tourism’, Human Reproduction 20 (2005), 3571. to reflect the numerous economic, cultural, social, and legal obstacles and apprehensions that motivate people to travel abroad, while others are prohibited from doing so,M.C. Inhorn & P. Patricio, ‘Rethinking Reproductive “Tourism” as Reproductive “Exile”’, Fertility and Sterility 92(3) (2009), 904-906. and the enormous physical and emotional exertion linked to the cross-border reproductive travel.R.F. Storrow, ‘Quests for Conception: Fertility Tourists, Globalization, and Feminist Legal Theory’, Hastings Law Journal 57 (2005), 295-330. Seen in this light, ‘reproductive exile’ can be indicative of deep social divisions and oppressive, discriminatory legal regimes in home countries.G. Pennings, ‘Legal Harmonization and Reproductive Tourism in Europe’, Human Reproduction, 19 (2004), 2689-2694; N. Hudson et al., ‘Cross-border Reproductive Care: A Review of the Literature’, Reproductive Biomedicine Online 22 (2011), 673-685; M.R. Nahman, ‘Reproductive Tourism: Through the Anthropological “Repro-scope”’, Annual Review of Anthropology 45 (2016), 417-432. It stems from legal barriers to accessing healthcare, including the prohibition of procedures such as anonymous gamete donation, embryo cryopreservation, some forms of gestational surrogacy, or abortion in certain circumstances. ‘The politics of exile’M.C. Inhorn & P. Patrizio, ‘Infertility around the Globe: New Thinking on Gender, Reproductive Technologies and Global Movements in the 21st Century’, Human Reproduction 21(4) (2015), 411-426.can have severe social consequences and usually disproportionately affects certain social strata. Many people who travel to evade domestic law do so in secrecy and in fear of criminal persecution and social stigmatisation. The negative consequences of secrecy, uncertainty and fear have surfaced, for instance, in court cases concerning Irish women travelling to the UK to access abortion services (Attorney General v X [1992]). They are noted in numerous feminist studies exposing the severe long-term physical and psychological impact of abortion travel on individual and family lives.L.J. Reagan, ‘Crossing the Border for Abortions: California Activists, Mexican Clinics, and the Creation of a Feminist Health Agency in the 1960s’, Feminist Studies 26(2) (2000), 323-48; A. Rossiter, Ireland’s Hidden Diaspora: The ‘Abortion Trail’ and the Making of a London-Irish Underground, 1980-2000 (London: Iasc Publishing, 2009); M. Gilmartin & A. White, ‘Interrogating Medical Tourism: Ireland, Abortion, and Mobility Rights’, Signs 36 (2011), 275-279; B. Palmer, ‘“Lonely, Tragic, but Legally Necessary Pilgrimages”: Transnational Abortion Travel in the 1970s’, Canadian Historical Review 92 (2011), 637-650; C. Sethna & M. Doull, ‘Accidental Tourists: Canadian Women, Abortion Tourism, and Travel’, Women’s Studies 41 (2012) 457-475; C. Freeman, ‘The Crime of Choice: Abortion Border Crossings from Chile to Peru’, Gender, Place and Culture 24(6) (2017), 851-868. In countries where the level of ART regulation remains scarce but there is a strong prohibition of surrogacy (e.g. India, Kenya, and Poland), there is a high chance of encountering the category of ‘invisible subjects’ who access unavailable ART services abroad (e.g. single women, gay couples, surrogates). Their legal status upon return to the country of origin will often remain unregulated or ambiguous. ‘Hidden diasporas’A. Rossiter, Ireland’s Hidden Diaspora: the ‘abortion trail’ and the making of a London-Irish under-ground, 1980-2000 (London: IASC Publishing, 2009). – people who travel in secrecy and keep living under the radar upon return – are scattered across Europe and across the globe.M.C. Inhorn, Local Babies, Global Science: Gender, Religion, and in vitro Fertilization in Egypt (New York: Routledge, 2003).

Furthermore, enhanced mobility of persons, goods, and services produces more legal uncertainty. Cross-border medical travel makes it extremely difficult to establish legal liability, compensation, or decision-making power in transnational healthcare settings. Specific international norms governing cross-border healthcare remain scarce, and the legal rules applicable in specific circumstances often remain unintelligible and are difficult to decipher amidst the multitude of laws belonging to different jurisdictions. Consequently, patients find themselves without adequate remedy and appropriate legal protection, and are unable to establish basic rules concerning the delivery of healthcare or its aftermath. This is further complicated by the fact that cross-border healthcare services can be offered by private providers and governed by an additional layer of contract and commercial law principles. As principles are often negotiated and shaped by private parties, they vary substantially across different contexts and jurisdictions. Questions concerning the different standards and quality of care in different jurisdictions have been at the heart of cross-border healthcare law analysis to date.I. Glenn Cohen, Patients with Passports: Medical Tourism, Law and Ethics (Oxford: Oxford University Press, 2015); D. Sao et al., ‘Healthcare Disputes across National Boundaries: The potential for Arbitration’, Washington International Law Review 42 G (2010), 475, 488-489. The impossibility to establish the legal rules applicable to healthcare migrants because of the opacity of the law can have dramatic and damaging outcomes for the subjects of TRHL, who often find themselves in extremely vulnerable legal and social positions.

For example, in the case of ABC v Ireland [2010], an Irish woman who travelled to the UK to terminate her pregnancy because of illness struggled to access the service in the UK due to her non-resident status. All applicants involved in the case reported additional problems with regard to their post-abortion care after returning home. In Mellet v Ireland [2016], a woman who had travelled to the UK for abortion unexpectedly received the foetal remains at home via courier delivery. These cases arose because of the lack of appropriate legal rules that would cover this kind of cross-border situations or the inability to identify and apply correctly existing national or international legal norms. Due to the secrecy and stigma surrounding abortion, cases like this are few and far between, but they illustrate well the difficulties that most women face in the context of cross-border abortion healthcare. In the context of assisted reproduction, case law has also revealed the difficulties experienced by English, French, and Italian parents whose children were born abroad as a result of cross-border surrogacy (AB (Surrogacy; Domicile) [2016]; Z (A child) (No 2) [2016], Labassee v. France [2014]). They all encountered problems establishing parenthood, citizenship, or parental rights and responsibilities. In the case of Paradiso and Campanelli v Italy [2015], a child born via cross-border surrogacy was forcefully removed from intended Italian parents, who were registered as his legal parents under Russian law, due to the lack of a demonstrable genetic link and suspected fraud. The uncertain status of surrogacy arrangements can lead to the exploitation of thousands of surrogates and intended parents. When children are denied citizenship and/or legal parenthood by state authorities, families are forced to live ‘legally clandestine lives’ without official recognition of biological identity or parental responsibilities (Mennesson v France [2014]: 67). This was clearly demonstrated by the cases concerning single persons in the UK, who were precluded by law from obtaining parental responsibility with regard to their children born via (cross-border) surrogacy (Re Z (A Child) [2015]; Re Z (A Child) (No 2) [2016]). For years, these persons and their children lived without their parental status officially settled, without sufficient legal recognition: hidden, forgotten, invisible. Although transnational reproductive healthcare was not at the heart of these cases, the cross-border component has exacerbated the legal uncertainties that families using surrogacy faced in their home countries upon return. Furthermore, while the problem of citizenship is not a health issue as such, it could only have arisen in relation to fertility treatment of a gay single father, as demonstrated in Re Z. Thus, legal rules with regard to establishing citizenship of future children can be said to constitute an important barrier to cross-border treatment.

According to research supported by the WHO, the current lack of regulation in medical travel creates risks for patients due to a lack of oversight and variable standards of practice.N. Lunt, S.T. Green, R. Mannion & D. Horsfall, ‘Quality, Safety and Risk in Medical Tourism’, in M.C. Hall (ed.), Medical Tourism: The Ethics, Regulations, and Marketing of Health Mobility (London: Routledge 2012); N. Lunt, D. Horsfall & J. Hanefeld (eds.), Handbook on medical tourism and patient mobility (Cheltenham: Edward Elgar Publishing, 2015); S. Siddiqi et al., ‘Assessing Trade in Health Services in Countries of the Eastern Mediterranean from a Public Health Perspective’, International Journal of Planning and Management 25(3) (2019), 231-250. Consequently, the studies have argued legal and economic frameworks for medical travel can help to clarify liabilities for adverse events and ensure equality of access for the local population. Furthermore, existing governance structures and legal frameworks addressing treatment and care standards need to be harmonised and international quality standards need to be enforced and maintained.N. Lunt et al., Medical Tourism: Treatments, Markets and Health System Implications: a Scoping Review (Paris: Organisation for Economic Co-operation and Development, 2011); K. Ruggeri et al., ‘Evidence on Global Medical Travel’, Bulletin of the World Health Organisation 93 (2015), 785-789, https://www.who.int/bulletin/volumes/93/11/14-146027.pdf. The international community has been very slow in responding to the pressures arising in the context of cross-border health travel.There is, admittedly, limited regulation at the EU level. However, the impact of the Directive 2011/24 on the application of patients’ rights in cross-border healthcare is a matter of debate. Some claim that the Directive creates patients’ rights, pays attention to the quality and safety of healthcare services and creates an excessive structure of cooperation in the field of healthcare. See: M. Peeters, ‘Free Movement of Patients: Directive 2011/24 on the Application of Patients’ Rights in Cross-Border Healthcare’, European Journal of Health Law 19(1) (2012), 29-60. Others are more sceptical arguing that the Directive merely regulates legal entitlements to treatment within the EU and the reimbursement for such treatment and it is not concerned with raising standards of medical practice across the EU. See W. Palm & R. Baeten, ‘The Quality and Safety Paradox in the Patients’ Rights Directive’, European Journal of Public Health 21(3) (2011), 272-274 or T.K. Hervey & J. McHale, Health Law and the European Union (Cambridge: Cambridge University Press, 2011). Any future international response, if it were to be effective, would require knowledge of the existing legal principles and decision-making structures and understanding of the socio-legal factors that determine their development. Therefore, it is argued here that before developing new international legal frameworks, we should first identify, systematise, and analyse existing common norms, rules and the processes through which they emerge. Besides focusing on international legislative and harmonising efforts scholars should turn their attention toward the development of a conceptual framework that would help capture the rules and mechanisms developed by legislators, courts, and professional bodies in all their variety and complexity. A conceptual framework of this kind, while focusing on commonalities, has to accommodate moments of rupture, resistance, and backlash, integral to any legal development.

A series of analytical questions present themselves in this respect: 1) How can we construct a legal order in which norms relating to transnational reproductive health law derived from different sources of obligation can be organised in a transparent and coherent fashion? 2) How can we effectively identify higher-ranked norms and common principles that underscore TRHL? 3) What are the patterns of law formation and diffusion in the field of TRHL and what are the socio-legal factors underlying such developments? Successful analysis of these questions can help bring clarity into the field of TRHL and provide important insights into the process of its development. It can subsequently help address two more important normative questions, i.e. A) Does the TRHL order reconstructed in this way guarantee fair and equitable access to reproductive health services? B) How do we utilise it to resolve the problems concerning cross-border reproductive services? In order to address these questions attention should be directed toward the examination of the progressive emergence of a constitutional order of TRHL.

2.2.Scholarly responses to transnational reproductive health law problems

Transnational (cross-border) healthcare has been subject to extensive academic examination by scholars from a number of disciplines. Most studies focus on the economic consequences of medical tourism for States, health systems, business sectors, or private individuals.A. Whittaker & L. Manderson, ‘Cartwright E. Patients without Borders: Understanding Medical Travel’, Medical Anthropology 29(4) (2010), 336-343; R. Bisht, E. Pitchforth & S.F. Murray, ‘Understanding India, Globalisation and Health Care Systems: A Mapping of Research in the Social Sciences’, Global Health 8(1) (2012), 32-38. Legal analysis of medical tourism remains relatively limited, both geographicallyR. Deech, ‘Reproductive Tourism in Europe: Infertility and Human Rights’, Global Governance 9(4) (2003), 425-432; G. Pennings, ‘Legal Harmonization and Reproductive Tourism in Europe’, Human Reproduction 19 (2004), 2689-2694; M.Z. Bookman & K.R. Bookman, Medical Tourism in Developing Countries (New York: Palgrave, 2007). and thematically.M. Gilmartin & A. White, ‘Interrogating Medical Tourism: Ireland, Abortion, and Mobility Rights’, Signs 36 (2011), 275-279; M.C. Inhorn & P. Patrizio, ‘Infertility around the Globe: New Thinking on Gender, Reproductive Technologies and Global Movements in the 21st Century’, Human Reproduction 21(4) (2015), 411-426. Literature on transnational health law addressing the questions of civil and criminal liability of patients, doctors, and intermediaries involved in medical tourism focuses on domestic law, e.g. extraterritorial liability of State and private actors.I. Glenn Cohen, Patients with Passports: Medical Tourism, Law and Ethics (Oxford: Oxford University Press, 2015); I. Glenn Cohen, ‘Circumvention Tourism’, Cornell Law Review 97(6) (2012), 1309-1398; D. Sao et al., ‘Healthcare Disputes across National Boundaries: The Potential for Arbitration’, Washington International Law Review 42 (2010), 475, 488-489; N. Cortez, ‘Patients without Borders: The Emerging Global Market for Patients and the Evolution of Modern Healthcare’, Indiana Law Journal 83 (2008), 74-91. Health law literature usually compartmentalises specific issues and discusses them separately. For instance, there is a large amount of published research on the global regulation of organ trafficking and transplant tourism.J. McHale, ‘Organ Transplantation, the Criminal Law, and the Health Tourist A Case for Extraterritorial Jurisdiction?’, Cambridge Quarterly of Healthcare Ethics 22(1) (2013), 64-76; S. McGuinness & J. McHale, ‘Transnational Crimes Related to Health: How Should the Law Respond to the Illicit Organ Tourism?’, Legal Studies 34(4) (2014), 682-708; G.M. Danovitch et al, ‘Organ Trafficking and Transplant Tourism: The Role of Global Professional Ethical Standards – The 2008 Declaration of Istanbul’, Transplantation Journal 95(11), 1306-1312. Similarly, problems related to reproductive travel are further separated and fragmented. Studies usually focus on specific topic relating to abortion,R. Cook, J. Erdman & B. Dickens (eds.), Abortion Law in Transnational Perspective (Philadelphia: University of Pennsylvania Press, 2014); A. Cleeve et al., ‘Time to Act – Comprehensive Abortion Care in East Africa’, Lancet Global Health 4(9) (2016), 601-602; P. Bergallo & M.A. Ramón, ‘Constitutional Developments in Latin American Abortion Law’, International Journal of Gynaecology and Obstetrics 135(2) (2016), 228-23. assisted reproduction,G. Pennings, ‘Legal Harmonization and Reproductive Tourism in Europe’, Human Reproduction 19 (2004), 2689-2694; G. Pennings et al., ‘Cross-border Reproductive Care in Belgium’, Human Reproduction (24)12 (2009), 3108-3112; A. Krajewska, ‘Transnational Law Beyond the Private/Public Divide: The Case of Reproductive Rights’, Journal of Law and Society 45(S1) (2018), 220-244. or surrogacy.R. Cooke, S. Day Sclater & F. Kaganas (eds.), Surrogate Motherhood: International Perspectives (Oxford: Hart Publishing, 2003); N. Gamble, ‘Crossing the Line: The Legal and Ethical Problems of Foreign Surrogacy’, Reproductive BioMedicine Online 19(2) (2009), 151-152; S.L. Crockin, ‘Growing Families in a Shrinking world: Legal and Ethical Challenges in Cross-border surrogacy’, Reproductive Biomedicine Online 27(6) (2013), 733-741; M. Davies, Babies for Sale? Transnational Surrogacy, Human Rights, and the Politics or Reproduction (Chicago: Chicago University Press, 2017). Cross-border aspects of global reproductive health challenges, such as HIV, Zika, FGM, are discussed in the context of global health law. However, reproductive rights linked to abortion and assisted reproduction are often omitted in global health law literature as a peripheral topic of analysis.J.M. Zuniga et al., Advancing the Human Right to Health (Oxford: Oxford University Press, 2013); J. Harrington & M. Stuttaford (eds.), Global Health and Human Rights (London: Routledge, 2011); M. Freeman et al. (eds.), Law and Global Health (Oxford: Oxford University Press, 2014); L.O. Gostin, Global Health Law (Cambridge: Harvard University Press, 2014). Similarly, the literature on judicialisation of social and economic rights revealing commonalities in the interpretation and implementation of health rights across the globe treats reproductive rights as a separate line of inquiry.V. Gauri & D.M. Brinks (eds.), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge: Cambridge University Press, 2008); M. Langford (ed.), ‘Social Rights and Jurisprudence: Emerging Trends in International and Comparative Law’ (Cambridge: Cambridge University Press, 2008); A.E. Yamin & S. Gloppen (eds.), Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge: Harvard University Press, 2011); A. Clapham & M. Robinson (eds.), Realizing the Right to Health (Geneva: Ruffer and Rub, 2009); J. Tobin, The Right to Health in International Law (Oxford: Oxford University Press, 2014).

Research on reproductive rights spreads across many disciplines, but it remains fragmented too. Seminal work produced by historians and anthropologists tends to explain the advancement of reproductive rights in terms of a continuous struggle between conservative and liberal players in national contexts.R.P. Petchesky, Abortion and Woman’s Choice: The State, Sexuality, and Reproductive Freedom (Boston: Northeastern University Press, 1984); K. Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984); L.J. Reagan, When Abortion was a Crime: Women, Medicine, and Law in the US 1967-1973 (Berkeley: University of California Press, 1997); S. Sheldon, Beyond Control: Medical Power and Abortion Law (London: Pluto Press, 1997); R. Solinger, Abortion Wars: A Half Century of Struggle 1950-2000 (Berkeley: University of California Press, 1998). Studies that aim at analysing the international mechanisms of norm production focus on the complex power relations between different political actors in international arenas.C. Bunch & S. Fried, S. ‘Beijing ’95: Moving Women’s Human Rights from Margin to Center’, Signs 22(1) (1996), 200-204; D. Hulme, ‘Reproductive Health and the Millennium Development Goals: Politics, Ethics, Evidence and an “Unholy Alliance”’, Brooks World Poverty Institute Working Articles 105 (2009). Furthermore, the studies that focus on international law usually leave aside norms produced by private non-state actors.C. Bunch & S. Fried, S. ‘Beijing ’95: Moving Women’s Human Rights from Margin to Center’, Signs 22(1) (1996), 200-204; D. Hulme, ‘Reproductive Health and the Millennium Development Goals: Politics, Ethics, Evidence and an “Unholy Alliance”’, Brooks World Poverty Institute Working Articles 105 (2009). Studies in the field of the sociology of law relating to transnational socio-legal mechanisms exist but remain scarce.E.H. Boyle et al., ‘Abortion Liberalisation in World Society 1960-2000’, American Journal of Sociology 121(3) (2015), 882-913; E.H. Boyle & J.W. Meyer, ‘Modern Law as a Secularised and Global Model: Implications for the Sociology of Law’, Soziale Welt 49(3) (1998), 213-232. In contrast, at the national level, the field of reproductive rights is dominated by (comparative) analysis of constitutional, administrative, or private law, court jurisprudence, or the implementation gap.R. Cook, J. Erdman & B. Dickens (eds.), Abortion Law in Transnational Perspective (Philadelphia: University of Pennsylvania Press, 2014); D. McBride Stetson, ‘Abortion Policy Triads and Women’s Rights in Russia, The US, and France’ in M. Githens & D. McBride Stetson (eds.), Abortion Politics: Public Policy in Cross-cultural Perspective (London: Routledge, 1996); F. De Londras & M. Enright, Repealing the 8th – Reforming Irish Abortion Law (Bristol: Policy Press, 2018). What unites most studies in the field of reproductive rights is a top-down understanding of the process of law formation, according to which the most effective way of enhancing reproductive rights is to achieve political consensus at the international level, which – when eventually translated into hard law – gradually diffusesE.H. Boyle et al., ‘Local Conformity to International Norms: The Case of Female Genital Cutting’, International Sociology 17(1) (2002), 5-33. or cascadesK. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton & Co. 2011). (in)to national and subnational settings. Studies of such consensus building tend to focus on the long and strenuous processes of political negotiations and activist mobilisation in international forums.F. Girard, ‘Taking ICPD beyond 2015: Negotiating Sexual and Reproductive Rights in the Next Development Agenda’, Global Public Health 9(6) (2014), 607-619; A.E. Yamin & V.M. Boulanger, ‘Why Global Goals and Indicators Matter: The Experience of Sexual and Reproductive Health and Rights in the Millennium Development Goals Journal of Human Development and Capabilities’, Journal of Human Development and Capabilities 15(2-3) (2014), http://dx.doi.org/10.1080/19452829.2014.896322. Comparative legal studies, especially those based on cultural understandings of law, tend to focus on differences and tensions between legal systems.E.g. R.B. Siegel, ‘The Constitutionalization of Abortion’ in M. Rosenfeld & A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012); D.M.B. Stetson, Abortion Politics, Women’s Movements, and the Democratic State: A Comparative Study of State Feminism (Oxford: Oxford University Press, 2003); M. Githens & D.M.B. Stetson, (eds.), Abortion Politics: Public Policy in Cross-cultural Perspective (London: Routledge, 2013). These approaches seem to be missing an opportunity to analyse the horizontal processes of alignment between norms and institutions governing reproductive healthcare in different parts of the world, supported by a coherent conceptual framework. Analysis of this kind offers the chance to identify moments of contestation, resistance that can often lead to the creation or recognition of new norms through cross-fertilisation of legal concepts.

A different approach is needed to help reconstruct reproductive rights at transnational level. First, instead of focusing on international norm production and their subsequent implementation and diffusion in local settings, the horizontal and vertical processes of alignment between norms at the national, regional, and international levels should be examined. In this respect, in addition to national legislators and international organisations, national, regional, and international judicial bodies should be seen as actors involved in the production of transnational law. Professional organisations and private actors involved in quality control and standard setting at transnational level should be identified and considered loci of law-making authority. Third, instead of studying the application of general legal principles in the context of reproductive health, studies should be focused on the development of system-specific higher-ranked principles. Only sociologically informed inquiry can help create a comprehensive conceptual framework able to capture the breadth and complexity of the constitutional development of TRHL.

In this respect, transnational legal theory offers original insights. Different studies in the field attempt to bring order and coherence into the international arena permeated by processes of pluralisation,N. Krisch, Beyond Constitutionalism. The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2010); B. De Sousa Santos, Towards a New Legal Common Sense (London: Butterworths, 2002); R. Michaels, ‘Global Legal Pluralism’, Annual Review of Law and Social Sciences 5 (2009), 243-262. fragmentation,M. Koskenniemi & P. Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, Leiden Journal of International Law 15(3) (2002), 553-579. and privatisation.A.M. Slaughter, A New World Order (New York: Princeton University Press, 2004); A.M. Slaughter, ‘A Global Community of Courts’, Harvard International Law Journal 44 (2003), 191-219; S. Tully, Corporations and International Lawmaking (Boston/Leiden: Martin Nijhoff, 2007). These attempts often revolve around the notion of transnational constitutionalism, which focuses on the emergence of constitutional principles and structures within the global context.N. Walker, ‘The Idea of Constitutional Pluralism’, Modern Law Review 65 (2002), 317-359; J. Klabbers, A. Peters & G. Ulfstein (eds.), The Constitutionalization of International Law (Oxford: Oxford University Press, 2009). An important tension exists between transnational legal theorists in this respect. Some scholars claim that the constitutionalisation of transnational law is to be found mainly within the realm of private law.G.P. Calliess & P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Oxford: Hart Publishing, 2010). According to these views, private law has begun to extend beyond its conventional national boundaries, forming private legal orders that are increasingly autonomous in relation to state structures. These private orderings, developed mainly by non-state actors, are now able to perform some of the classical public law functions in setting out the normative and institutional structures for the governance of the global society.G. Teubner, Constitutional Fragments. Societal Constitutionalism and Globalisation (Oxford: Oxford University Press, 2012). Global constitutional norms, it is argued, remain embedded in the ensemble of legal norms. They exist latently and they are also peculiarly invisible.G. Teubner, Constitutional Fragments. Societal Constitutionalism and Globalisation (Oxford: Oxford University Press, 2012). Theorists, who contest these claims, argue that transnational law is in fact predominantly public, in that public authorities play a vital role in global law-making through administrative and judicial decisions.B. Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, The European Journal of International Law 20(1) (2009), 23-57, 29. Proponents of this view argue that the constitutional formation of transnational law still depends largely on state bodies and constitutional law.C. Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge: Cambridge University Press, 2011). In the latter constructions, international human rights developed after World War II, and incorporated into domestic law by national societies, are seen as normative institutions that supported the inclusionary structure of their political systems.C. Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure (Cambridge: Cambridge University Press, 2016). States use human rights to strengthen their inclusionary structures and thus their power. Consequently, courts and rights-based litigation acquire a constituent role in the process of transnational norm construction. Regrettably, transnational legal theory has not treated health law and transnational healthcare as a serious subject of analysis.Ch. Joerges & E. Petersmann, Constitutionalism, Multilevel Trade Governance and Social Regulation (Oxford: Hart Publishing, 2006); P.F. Kjaer, G. Teubner & A. Febbrajo (eds.), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation (Oxford: Hart Publishing, 2011).

Primary research into transnational reproductive health law has shown that while it displays many features of a global private ordering (i.e. established by private actors through private law mechanisms), its development still depends largely on the legal mechanisms developed by public state institutions.A. Krajewska & R. Cahill-O’Callaghan, ‘When a Single Man Wants to be a Father: Revealing the Invisible Subjects in the Law Regulating Fertility Treatment’, Social and Legal Studies (2019), 1-22; A. Krajewska, ‘Transnational Law Beyond the Private/Public Divide: The Case of Reproductive Rights’, Journal of Law and Society 45(S1) (2018), 220-244. However, this research remains limited and theoretical constructions of transnational health law are scarce.See, for example, J. Harrington, ‘Migration and Access to Health Care in English Medical Law: a Rhetorical Critique’, International Journal of Law in Context 4(4) (2009), 315-335; R. Fletcher, ‘Peripheral Governance: Administering Transnational Health-Care Flows’, International Journal of Law in Context 9(2) (2013), 160-191; C. Newdick, ‘European Court of Justice, Transnational Health Care, and Social Citizenship – Accidental Death of a Concept’, Wisconsin International Law Journal 26 (2008), 844-867. One reason for this scarcity might be that, healthcare travel, despite its recent growth, remains an exception to the rule, reserved for the rich, the privileged, and those whose condition allows them to take the journey. Another reason might be that, as argued elsewhere, health system, in contrast to other functional systems in society, has been slow to develop a specific generalised symbolic means of communication, or a complex theory of reflection based purely on its function.J. Bauch, Gesundheit als sozialer Code. Von der Vergesellschaftung des Gesundheitswesens zur Medikalisierung der Gesellschaft (Weinheim/Munchen: Juvents, 1990); J. Bauch, ‘Selbst- und Fremdbeschreibung des Gesundheitswesens’ in H. de Berg & J. Schmidt (eds.), Rezeption und Reflexion. Zur Resonanz der Systemtheorie Niklas Luhmanns außerhalb der Soziologie (Frankfurt/Main: Suhrkamp, 2000). See also A. Krajewska‚ ‘The International Law and Regulation of Medical Genetics and Genomics: From International to Transnational Biomedical Law?’ in D. Kumar & R. Chadwick (eds.), Genomics and Society Ethical, Legal, Cultural and Socioeconomic Implications (Amsterdam: Elsevier Academic Press: 2015), 363-388. However, regardless of the reason, this lack of engagement of legal theorists with transnational health law, and TRHL in particular, is far from ideal, as it can offer some original insights. For instance, transnational legal theory has already helped identify a series of constitutional moments in the formation of global/transnational health law.A. Krajewska, ‘Bioethics and Human Rights in the Constitutional Formation of Global Health’, Laws 4 (2015), 771-802. However, what has not yet been examined is the development of different constitutive elements of TRHL, i.e. the subjects, principles and structures. Therefore, it has been argued that as complex internal and external pressures released in the public and in the private sphere shape transnational reproductive health law, further studies into the relationship between these interrelated processes are required.A. Krajewska, ‘Transnational Law Beyond the Private/Public Divide: The Case of Reproductive Rights’, Journal of Law and Society 45(S1) (2018), 220-244. The rest of the article outlines the ways in which this analysis could and/or should be approached.

3.Visibilisation as a methodological tool to approach the reconstruction of TRHL

The conceptual framework proposed here takes as a starting point the findings of transnational legal theory concerning the latent constitutionalisation of the transnational legal arena. It is based on the assumption that the subjects, principles, and structures of TRHL currently exist in emergent or latent form. This means that they are not recognised in the realm of law or that they remain difficult to recognise in a standard legal theoretical analysis. The proposed framework employs the concept of visibilisation to demonstrate how the three elements of the TRHL assume constitutional prominence. Visibilisation is understood in two ways, normatively and analytically (methodologically).

Visibilisation as a normative concept is understood as an aggregate of processes with both legal and sociological dimensions, in which subjects assume legal personality and new principles and structures gain legal recognition in the realm of TRHL. In other words, visibilisation is understood as a process in which subjects who remained excluded from or marginal to the legal sphere become legally relevant because of the recognition of their particular entitlements and obligations. In this respect, visibilisation involves legal cases where the invisible persons involved in transnational reproductive healthcare (e.g. patients, children, surrogates denied certain reproductive rights) gain recognition in the public domain.A. Krajewska & R. Cahill-O’Callaghan, ‘When a Single Man Wants to be a Father: Revealing the Invisible Subjects in the Law Regulating Fertility Treatment’, Social and Legal Studies (2019), 1-22; A. Krajewska, ‘Transnational Law Beyond the Private/Public Divide: The Case of Reproductive Rights’, Journal of Law and Society 45(S1) (2018), 220-244. They acquire visibility through transnational legal mechanisms as subjects of rights. One such mechanism is litigation, especially litigation regarding human rights, the effects of which can extend beyond the individual subjective claim. This claim is based on the observation that ‘judicial attention itself can help mobilise concern in other arenas’M. Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell University Press, 1990), 146. and bring into focus a group of subjects and a larger social problem. As far as principles and structures are concerned, visibilisation will largely overlap with the process of institutionalisation (institutional entrenchment). Visibilisation will thus be used to mean the process in which principles developed extra-legally (as ethical or professional standards) acquire the status of law as they become gradually recognised by transnational legal actors, by judicial bodies or national and/or international legislators. Such principles are to be found for instance in contracts between healthcare providers and clients using private healthcare, in private-public partnerships between States and healthcare providers, or in court judgments. Admittedly, not all principles that acquire legal visibility will necessarily be fair and just in that they may not guarantee full access to reproductive health services. However, one could argue, that analysing the process of visibilisation will help understand the way in which legal principles having detrimental effect on access to healthcare emerge and those that may have to be resisted. As far as TRHL structures are concerned, the process of visibilisation will include activities of patient organisations, support groups, and professional bodies and institutions involved in the provision and regulation of transnational reproductive healthcare. For instance, the analysis of visibilisation may address the processes leading to the formation and formal recognition of transnational professional and patient networks (medical associations, patient groups, foundations, NGOs) as decision-makers in the field of TRHL. To summarise, the concept of visibilisation is applied normatively as a lens to examine emergent forms of legal agency in this field, and to explain how new actors and new organisations operate formatively in the constitutional construction of the TRHL.

The second understanding of visibilisation proposed here refers to the research approach taken to reconstruct invisible elements of TRHL. As mentioned above, many of the principles and structures of TRHL will not be widely known and acknowledged either by patients or by other actors involved in the provision of reproductive health services (service providers, lawyers, healthcare practitioners, or state officials). Transnational legal principles will often develop in the realm of private law, hidden in contracts between patients and service providers, private-public partnerships concerning the delivery of health services, or funding programmes. While some international organisations providing institutional and normative structures are well known, like the World Medical Associations, other professional bodies like chambers of physicians or specialist associations, may not be readily recognised as relevant decision-makers at the transnational level. In this context, visibilisation entails the process of identifying (‘uncovering’) the invisible subjects, principles, and structures of TRHL through legal and sociological analysis.

4.Future aims and objectives of research into TRHL

4.1.Invisible Subjects

Invisible subjects of transnational reproductive health law are persons involved in reproductive healthcare whose legal position is not adequately recognised either at the supranational level or in national law as a result of, or in relation to cross-border medical travel. Such subjects do not enjoy sufficient legal protection because either: a) the services they seek are illegal in their home country; b) their situation is not covered by any rules provided in different legal systems; or c) their legal status is uncertain due to overlapping and competing legal rules. For instance, this category could include: a) women who have to travel in secrecy to access abortion services abroad because of domestic legal restrictions; b) single men and women who travel to access fertility treatment or use surrogacy prohibited or unavailable in their home countries (whose children remain stateless or without official legal parenthood status); c) women who buy medical abortion (‘abortion pills’) online or e) people who use imported donated gametes in their fertility treatment. Vulnerabilities experienced by such subjects have been illustrated by the above-mentioned cases of single men in fertility treatment, who were precluded by law from obtaining parental responsibility with regard to their children born via (cross-border) surrogacy (Re Z (A Child) [2015]; Re Z (A Child) (No 2) [2016]). For years, these men and their children lived without their parental status officially settled. Not having parental duties towards their children recognised by law could have had severe implications in situations of disagreement between parents and surrogates and/or public authorities, including hospitals or school. It was only through human rights litigation that they managed to acquire visibility. English courts declared in 2016 that domestic legislation was incompatible with the rights protected by Article 8 in conjunction with Article 14 of the European Convention on Human Rights (ECHR) and a change in the law followed two years later.

Research into this problem demonstrated that the social exclusion of individuals in domestic settings has led to their marginalisation in law, policy and medical practice, and to their invisibility in an important sphere of social life.A. Krajewska & R. Cahill-O’Callaghan, ‘When a Single Man Wants to be a Father: Revealing the Invisible Subjects in the Law Regulating Fertility Treatment’, Social and Legal Studies (2019), 1-22; A. Krajewska, ‘Transnational Law Beyond the Private/Public Divide: The Case of Reproductive Rights’, Journal of Law and Society 45(S1) (2018), 220-244. However, their lack of visibility did not preclude their participation in the ever-expanding and open transnational system of cross-border reproductive care supported by free-market economy. Although these men and their surrogacy-born children continued to live in a legal limbo, human rights litigation helped them to acquire visibility, highlighted the need for legislative reform, and led to the emergence of new transnational legal subjectivity. These findings support the claim that rights-oriented litigation in transnational settings has begun to produce ‘a defining constitutional grammar for society, and the regulatory structure of global society in its extra-national dimensions is increasingly formed by subjects acting as litigants’.C. Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure (Cambridge: Cambridge University Press, 2016), 393. Reproductive rights litigation is the core – albeit not the only – mechanism by which invisible subjects obtain visibility in TRHL.As mentioned earlier, reproductive health law is defined broadly here and it includes reproductive rights as an important determinant of reproductive health. In the context of fertility treatment this interpretation is reinforced for instance by the fact that in 2017, the WHO intended to change the definition of infertility to include the so-called social infertility, i.e. the inability to have children (instead of the lack of pregnancy after a year of unprotected sex). On 20th October 2016, the Telegraph reported that following a ‘dramatic change’ of the definition of infertility that the World Health Organisation was about to announce, ‘single men and women without medical issues [would] be classed as “infertile”, if they do not have children but want to become a parent.’ See: H. Bodkin, ‘Single Men Will Get the Right to Start a Family under New Definition of Infertility’, The Telegraph, 20 October 2016, http://www.telegraph.co.uk/news/2016-

/10/19/single-men-will-get-the-right-to-start-a-family-under-new-defini/. Therefore, examining the process through which subjects acquire visibility and legal recognition constitutes the first step in determining the scope and nature of the constitutional development of TRHL.

This could be achieved by analysing legal texts and policy documents at different levels of norm production. First, an analysis of the decisions of regional and international human rights bodies should be conducted. This could include cases on abortion and assisted reproduction brought before international human rights bodies (e.g. the UN Human Rights Committee or the CEDAW Committee),E.g. Artavia Murillo et al. (‘In Vitro Fertilization’) v Costa Rica [2012] (Inter-American Court of Human Rights, IVF Decision, 28 November 2012). and regional human rights bodies (Inter-American Court of Human Rights (IACtHR), European Court of Human Rights (ECHR), or the African Commission on Human and Peoples’ Rights (ACHPR). Cases heard by national supreme and constitutional courts should also be included in the analysis. The assumption is that these bodies are likely to have encountered cases regarding transnational reproductive healthcare, and that affected parties will have obtained visibility through cases brought before those bodies.

What needs to follow is the analysis of existing hard and soft-law international instruments and policy documents adopted by state and non-state actors, to trace the development of legal subjectivity after health rights litigation. This includes the analysis of new General Comments to the UN Covenants, World Health Organisation and World Medical Association guidelines, UN General Assembly declarations or resolutions, but also the ESHRE guidelines and the documents prepared by the Hague Conference on Private International Law. The relevant legislation and jurisprudence of national higher courts concerning abortion and assisted reproduction in selected polities could also be examined to identify instances of invisible subjects that have gained recognition through transnational legal mechanisms, i.e. incorporation of international or transnational norms into domestic law. For instance, Canada and the UK have recently witnessed the recognition of new subjects of the law governing ARTs. In 2007, the Court of Appeal for Ontario allowed the registration of three parents on birth certificates of children born via sperm donation to a lesbian couple (A.A. v.B.B. (2007), 83 O.R. (3d) 561, 2007 ONCA 2 (CanLII)), while in 2016 an English court acknowledged the right of single parents to obtain parental responsibilities over their children born via surrogacy (Re Z [2016]; Re A & B (Parental Order Domicile) [2013]). French cases of Mennesson v France and Labassee v France [2014] found their resolution before the ECtHR. All these developments had a transnational element either in the courts’ reasoning or in the assisted reproduction service. However, the analysis of legal mechanisms would not be sufficient, as it would not explain the wider societal factors relating to the process of visibilisation of TRHL subject.

Therefore, future studies should also include the examination of the social and legal circumstances underlying the recognition of legal subjects in TRHL. This includes an analysis of patterns of legal mobilisation (especially in reproductive rights litigation). It has been aptly pointed out that legal (civil society) mobilisation is a form of ‘resistance that mobilises vulnerability for the purposes of asserting existence, claiming the right to public space, equality…’.J. Butler, Z. Gambetti & G. Sabsay (eds.), Vulnerability in Resistance (Durham & London: Duke University Press, 2016), 27. Evidence of such mobilisation can be found in court proceedings at international and national levels, including supporting policy documents, which should indicate the formation of collective identity and political and legal agency among litigants. This line of inquiry is based on the evidence stemming from the literature on social and civil society mobilisation.C. Gianella & A.E. Yamin, ‘Struggle and Resistance: Using International Bodies to Advance Sexual and Reproductive Rights in Peru’, Berkeley Journal of Gender, Law and Justice (2018), 101-133; B. De Souza Santos & C.A. Rodriguez-Garavito (eds.), Law and Globalisation from Below: Towards Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005). This literature emphasises vulnerability and marginalisation as ‘alternative resources for self-empowerment, collective agency, and protection’ and ‘as one of the conditions of the very possibility of resistance’.J. Butler Z. Gambetti & G. Sabsay (eds.), Vulnerability in Resistance (Durham & London: Duke University Press, 2016), 1-3. Consequently, the empowering understanding of vulnerability and marginalisation should constitute an important aspect of the future research into the invisible subjects of TRHL.

4.2.Invisible Principles

Invisible principles are principles created by state and non-state actors assuming quality-control and norm-setting functions at national, supranational, and international levels. These principles, hidden in the multitude of norms belonging to different jurisdictions, remain obscure or unintelligible to the international community and the individuals involved in cross-border healthcare. According to theories of transnational constitutionalism, transnational principles develop incrementally in a form that is ‘embedded in the ensemble of legal norms, forming the constitution in long concealed evolutionary processes’.G. Teubner, Constitutional Fragments. Societal Constitutionalism and Globalisation (Oxford: Oxford University Press, 2012), 112. Therefore, in order to construct a plausible and comprehensive conceptual framework for the analysis of TRHL, it is crucial to establish whether common principles are emerging in the realm of TRHL and, if so, to analyse systematically these principles and the patterns of their formation. The need to examine the emergence of constitutional norms in TRHL is due to the fact that, while science and medicine set global agendas traversing national borders, there is no political or legal framework at the global level able to limit the expansion of transnational healthcare, which, if left unregulated, is subject to adverse economic and commercial pressures. As private companies and non-state actors involved in cross-border healthcare proliferate, TRHL is increasingly penetrated by commercial law contracts and private agreements. This makes the identification and examination of common principles very difficult, as they are usually hidden in commercial contracts and civil law agreements. Nevertheless, comparative studies of health rights litigation have identified growing congruence between health law principles (and practices) across the world. In the context of reproductive rights such principles include for instance procedural reproductive justice, medical deference, consent to treatment, or special protection of minors or pregnant women, etc.R. Siegel, ‘The Constitutionalisation of Abortion’, in R. Cook, J. Erdman & B. Dickens, Abortion Law in Transnational Perspective (Philadelphia: University of Pennsylvania Press, 2014), 13-35; R. Rebouché, ‘Abortion Rights as Human Rights’, Social & Legal Studies 25(6) (2016), 765-782; A. Krajewska, ‘The International Law and Regulation of Medical Genetics and Genomics: From International to Transnational Biomedical Law?’ in D. Kumar & R. Chadwick (eds.), Genomics and Society Ethical, Legal, Cultural and Socioeconomic Implications (Amsterdam: Elsevier Academic Press, 2015), 363-388. It has been argued that common principles stem from a cross-cultural imitation between legal systems experiencing similar processes of legal, political and economic transition.V. Gauri & D.M. Brinks (eds.), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge: Cambridge University Press, 2008); M. Langford (ed.), Social Rights and Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press 2008); A.E. Yamin & S. Gloppen (eds.), Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge: Harvard University Press, 2011). Good examples of such convergence are to be found in Latin America.P. Bergallo & A. Ramón Michel, ‘Constitutional Developments in Latin American Abortion Law’, International Journal of Gynecology & Obstetrics 135 (2016), 228-231. Global sociologists have argued that the legal world today is ‘produced more with commonality achieved through diffusion, isomorphism, and shared rationalism (…)’.E.H. Boyle & J.W. Meyer, ‘Modern Law as a Secularised and Global Model: Implications for the Sociology of Law’, Soziale Welt 49(3) (1998), 213-232, 227. Determining the nature of the processes through which such common principles develop in the field of cross-border reproductive healthcare constitutes a vital part of the construction of the TRHL constitution.

In order to identify the growing convergence of principles concerning TRHL one should undertake a systematic analysis of court decisions at the international, regional, and national level. Secondly, a systematic examination of private law rules governing cross-border healthcare would be necessary. This could include norms produced by private actors, such as international medical associations or transnational regulatory bodies (e.g. International Federation of Fertility Societies, Hague Conference on Private International Law). It could also encompass norms produced by state actors and international organisations, e.g. the Brussels Convention on the Jurisdiction of Courts and the Recognition of Enforcement of Judgments in Civil and Commercial Matters (1968) or the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (1979)). Furthermore, rules of private law concerning cross-border reproductive healthcare would need to be analysed, focusing on selected civil, family, and private international law codes and case law. Analysis of domestic legislation concerning abortion, assisted reproduction, citizenship, and family law would have to complement the construction of TRHL principles. Empirical research including interviews with representatives of the judiciary in selected polities and human rights courts could complement the textual analysis in order to establish the legal and extra-judicial factors contributing to the formation of common principles of TRHL. Particular attention should be paid to evidence explaining the mechanisms of congruence through cross-fertilisation.

The analysis of invisible principles would not be complete without the examination of the social and legal factors contributing to their growing convergence. Sociologists of law have long argued that law formation is ‘a multiple, recursive process, punctuated by iterations of norm making among different branches of government and national and transnational actors, and patterns of engagements between them’.T. Halliday & B. Greenhow Carruthers, ‘The recursivity of law: Global norm making and national lawmaking in the globalization of corporate insolvency regimes’, Annual Review of Sociology 112(4) (2009), 1135-1202. It is reasonable to expect that legal principles in the field of TRHL would also develop in a non-linear and recursive process of reception and resistance, often embedded in everyday medical practices. This hypothesis could be tested through the analysis of professional codes of practice and policy documents issued by international, regional and national professional regulators and associations. The analysis would focus on establishing connections between the professional regulation of medical practice and formal legal norm-formation. Comparative analysis of these documents, international, and national jurisprudence and other professional standards would form an important part of this line of inquiry. Here too this analysis could be complemented by interviews with representatives of transnational medical associations (focused on reproductive rights) and international organisations involved in cross-border healthcare to ascertain the mechanisms facilitating convergence (e.g. professional exchanges, international training courses, mobility of work force).

4.3.Invisible Structures

Invisible structures are transnational governmental and non-governmental organisations, professional and patient associations, and other loci of authority relating to reproductive healthcare that create substantive rules and prescribe procedural norms on law-recognition and sanctions for non-compliance. Transnational constitutionalism scholars have argued that any constitutional formation requires identifiable loci of authority and second-level rules, prescribing procedural norms on law-making, law-recognition, and sanctions for non-compliance.G. Teubner, Constitutional Fragments. Societal Constitutionalism and Globalisation (Oxford: Oxford University Press, 2012). However, it has been argued, these structures are not established by States or any particular bodies of international law, but emerge through processes of contestation of decisions taken by the ‘organised professionalised sphere’ (medical professionals) by a ‘spontaneous sphere’, i.e. ethics committees, patient and civil society organisations, etc.G. Teubner, Constitutional Fragments. Societal Constitutionalism and Globalisation (Oxford: Oxford University Press, 2012), 91. In this respect, sociologists of law have contested these claims arguing that dissention and resistance are controlled through the generation of globalised claims for new (e.g. social and economic) rights, which in turn leads to ‘the expansion of generalised and universalistic legalised frames’.E.H. Boyle & J.W. Meyer, ‘Modern Law as a Secularised and Global Model: Implications for the Sociology of Law’, Soziale Welt 49(3) (1998), 213-232. This would imply the expansion of public law dimension of TRHL, i.e. public bodies, such as courts, government bodies and international organisations. Therefore, what needs to be examined is the way in which institutional national, international, and transnational structures determine the development of common principles in the area of TRHL. National and transnational professional medical organisations (and regulatory bodies) would be expected to constitute important structures and loci of authority in TRHL.

This analysis would require a three-stage approach. First, the analysis should focus on policy documents governing the establishment and operation of international, regional professional organisations involved in the processes of standardisation and self-regulation, e.g. the European Society of Human Reproduction and Embryology (ESHRE), International Federation of Gynaecology & Obstetrics (FIGO). Such analysis would be conducted to establish their functions and powers. Second, an analysis of national laws regulating professional organisations should be conducted in order to establish the links between them and the supranational and international professional bodies. Third, the national and supranational case law involving these organisations should be examined to establish the role and possible hierarchies of these organisations in the TRHL system.

Finally, researchers should direct their attention toward the socio-legal conditions that shape the development of transnational institutional structures relating to reproductive healthcare (e.g. professional associations, adjudicative organs, governmental organisations), and to analyse the impact of these structures on the development of TRHL principles and subjects. The ways in which professional organisations shape and determine the development of transnational structures should conclude the investigation into the processes of constitutionalisation of TRHL. This last stage of investigation is based on claims about the influence of national environments on transnational civil society actors.S.S. Stroup, Borders among Activists: International NGOs in the United States, Britain, and France (Ithaca: Cornell University Press, 2012); M. Keck & K. Sikkink, Activists beyond borders (Ithaca: Cornell University Press, 1998). For instance, literature on the history of the medical profession in Western and Eastern Europe has identified very different patterns of professionalization.E. Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York: Harper & Row Publishers, 1970); E. Freidson, Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago: University of Chicago, 1986); M.S. Larson, The Rise of Professionalism (Berkeley: University of California Press, 1977); P. Stark, The Social Transformation of American Medicine: The Rise Of A Sovereign Profession and the Making of a Vast Industry (Washington: Basic Books, 1982). In the West, professionalisation took place in opposition to state structures, while in the East, it was strongly linked to the State.A. Jones (ed.), Professions and the state: expertise and autonomy in the Soviet Union and Eastern Europe (Philadelphia: Temple University Press, 1991); H.D. Balzer, Russia’s Missing Middle Class: the Professions in Russian History (New York: M.E. Sharp, 1996). This line of inquiry generates important insights regarding the formation of the professional structures in healthcare, which can be utilised to interpret the emerging institutional structures of transnational reproductive healthcare (law). In this respect, scholars should test how the historical and sociological context of the professional organisations in selected polities has impacted on their mobilisation around reproductive rights. They should aim to establish whether there is a correlation between the level of self-regulation and autonomy of medical organisations and their involvement in transnational structures, such as regional or international professional organisations. They would have to investigate whether domestic national factors play a significant role in shaping the structures and activities of international non-governmental organisations, creating large variations between themS.S. Stroup, Borders among Activists: International NGOs in the United States, Britain, and France (Ithaca: Cornell University Press, 2012). or whether networks operating across national frontiers significantly influences the development of human rights in particular states (e.g. in Latin America).M. Keck & K. Sikkink, Activists Beyond Borders (Ithaca: Cornell University Press, 1998).

Of course, one should not forget about the important role of the State in the development of the principles and structures of TRHL. The regulation of professionals and their activities are negotiated through dialogue, conflict and compromise between supra-national and national actors.J.R. Faulconbridge & D. Muzio, ‘Professions in a Globalizing World: Towards a Transnational Sociology of the Professions’, International Sociology 27(1) (2012), 136-152. Often, national parliaments and governments will constitute the site for resistance to transnationalising tendencies present in courts.J. Harrington & A. O’Hare, ‘Framing the National Interest: Debating Intellectual Property and Access to Essential Medicines in Kenya’, World Intellectual Property 17 (2014), 16-33. Therefore, it is important to acknowledge the role of the State as an actor in regulating professional structures now sits alongside and engages in dialectic negotiations with courts and supra-national institutions such as the UN, WHO, WTO, and the EU.M.L. Djelic & S. Quack, ‘Theoretical Building Blocks for a Research Agenda Linking Globalization and Institutions’ in M.L. Djelic & S. Quack (eds.), Globalization and Institutions: Redefining the Rules of the Economic Game (Cheltenham: Edward Elgar, 2003). TRHL structures will thus emerge as a result of dialogue and compromise between national and transnational actors that lead to ‘potential convergence (common cross-border standards) and simultaneously geographical fragmentation (locally specific forms of implementation and enforcement)’.J.R. Faulconbridge & D. Muzio, ‘Professions in a Globalizing World: Towards a Transnational Sociology of the Professions’, International Sociology 27(1) (2012), 136-152.

These claims in the context of TRHL would have to be tested, first, through a review of historical and sociological literature concerning the process of professionalisation of the medical profession. Second, they would need to be tested through the examination of the regulatory frameworks of the medical profession in the selected polities. Finally, interviews with doctors and members of domestic professional associations could give more insight into the socio-legal conditions in which these institutional structures emerge and the impact of professional autonomy on their development. It would also help identify the factors determining legal mobilisation of certain social actors around the issues of reproductive rights.

5.Conclusions

This article has outlined a new programme for future research in the field of transnational reproductive health law that would help re-imagine its conceptual contours and substantive content. It has argued that the first objective of this future re-imagined field of study should be to provide a systematic construction of the emerging higher-ranked norms concerning legal subjects, principles, and institutional structures that underpin reproductive health law at the transnational level. The second objective should be to elucidate the legal mechanisms, the institutional interactions and the forms of legal agency, which lead to the production of higher-ranking legal norms in the sphere of TRHL. Understanding the social and legal factors determining norm formation will help to develop new strategies amongst legal and civil society organisations – also affected by reproductive travel – and to secure protection for reproductive rights across the globe.