The UN Special Rapporteur on the sale and sexual abuse of children has released a report in which she now calls for the world to support the efforts of the Hague in its efforts to write a convention concerning international surrogacy arrangements.
The Hague Conference on Private International Law is based at The Hague, in the Netherlands. The Conference is made up of member nations, such as Australia, which then creates Hague Conventions, such as the Hague Intercountry Adoption Convention and the Hague Child Abduction Convention.
The Hague has had a project since 2011 concerning private international law regarding children, including international surrogacy arrangements.
From 2012 to 2016 I was the principal advocate for and co-author of a policy adopted by the American Bar Association in 2016 as to a proposed Hague surrogacy convention.
The full report of the Special Rapporteur are here:
Report of the Special
Rapporteur on the sale and sexual exploitation of children, including child
prostitution, child pornography and other child sexual abuse material
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Summary
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In
the present report, submitted pursuant to General Assembly resolution 73/155, the Special Rapporteur
on the sale and sexual exploitation of children, including child
prostitution, child pornography and other child sexual abuse material,
describes the activities undertaken in relation to the discharge of her
mandate since her previous report to the Assembly (A/73/174 and A/73/174/Corr.1).
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She
also presents a thematic study on safeguards for the protection of the rights
of children born from surrogacy arrangements. The report is supplementary to
her previous report to the Human Rights Council on surrogacy and sale of
children (A/HRC/37/60).
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The
thematic study contains an analysis of the international legal framework and
specific violations to the rights to identity, access to origins and to a
family environment. It then provides a review of existing safeguards and
subsequently proposes a set of safeguards for the protection of the rights of
children born from surrogacy arrangements.
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Contents
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Page
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I. Introduction..................................................................
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3
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II. Activities carried out by the Special Rapporteur.....................................
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3
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A.
Conferences and engagement
with the stakeholders..............................
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3
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B.
Country visits............................................................
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3
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III. Study on safeguards for the protection of the rights of
children born from surrogacy arrangements.................................................................
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A.
Objectives, scope and
methodology...........................................
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4
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B.
Ongoing international
initiatives.............................................
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5
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C.
International legal framework...............................................
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5
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D.
Safeguards on the protection
of the rights of children born from surrogacy arrangements
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11
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E.
General considerations.....................................................
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15
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IV. Conclusions and recommendations...............................................
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A.
Conclusions..............................................................
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B.
Recommendations.........................................................
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I. Introduction
1. The
present report, submitted pursuant to General Assembly resolution 73/155, contains information on
the activities undertaken by the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography and
other child sexual abuse material, during the period from August 2018 to June
2019.
2. The
report also includes a thematic study on safeguards for the protection of the
rights of children born from surrogacy arrangements. It aims to follow up on
last year’s thematic report on surrogacy and sale of children (A/HRC/37/60), presented at the
thirty-seventh session of the Human Rights Council.
II. Activities carried out by the Special
Rapporteur
A. Conferences
and engagement with stakeholders
3. On
18 and 19 September 2018, the Special Rapporteur attended the second meeting of
the Group of Experts on responses to violence against children, organized by the
Council of Europe, at which she presented the conclusions and recommendations
on combating and preventing the sale and sexual exploitation of children
through the implementation of the Sustainable Development Goals from a
children’s rights-based perspective contained in her report to the
seventy-third session of the General Assembly (A/73/174 and A/73/174/Corr.1). On 19 and 20
November, the Special Rapporteur attended the inaugural meeting of the
Interfaith Alliance for Safer Communities: Child Dignity Online. She continued
her engagement with the WePROTECT Global Alliance, a multi-stakeholder platform
dedicated to national and global action to end the sexual exploitation of
children online. From 27 to 29 November, the Special Rapporteur attended
the first regional dialogue in the Latin America and Caribbean region, entitled
“On the road to equality”, dedicated to the thirtieth anniversary of the
adoption of the Convention on the Rights of the Child.
4. On
5 March 2019, the Special Rapporteur presented her thematic report on the sale
and sexual exploitation of children in the context of sports to the Human
Rights Council and engaged in the subsequent interactive dialogue with
representatives of Member States and civil society. A panel discussion was held
on the subject on 7 March, attended by representatives of Member States,
United Nations agencies, sport federations and civil society.
5. On
27 May 2019, the Special Rapporteur addressed the high-level round table on
Sustainable Development Goal 16 on peace, justice and strong institutions,
addressing the pledge of the 2030 Agenda for Sustainable Development to leave
no one behind. The round table was organized by the Department of Economic and
Social Affairs of the Secretariat and the International Development Law
Organization, and hosted by the Government of Italy, in Rome.
B. Country
visits
6. The
Special Rapporteur visited Malaysia from 24 September to 1 October 2018, at the
invitation of the Government. She also conducted a country visit to Bulgaria
from 1 to 8 April 2019. The Special Rapporteur thanks both Governments for
their cooperation before, during and after the visits.
7. The
Government of the Gambia has agreed to a visit by the Special Rapporteur from
21 to 29 October 2019, and the Government of Paraguay has also invited her for
a visit during the first half of 2020. The Special Rapporteur is grateful for
the acceptance of her requests and looks forward to a constructive dialogue in
the preparation for the missions.
III. Study on safeguards for the protection of the
rights of children born from surrogacy arrangements
A. Objectives,
scope and methodology
8. In
her 2018 thematic report on surrogacy and sale of children submitted to the
Human Rights Council (A/HRC/37/60),
the Special Rapporteur explored the practice of surrogacy from the perspective
of her mandate, focusing on the prohibition of the sale of children. In the
context of potentially exploitative practices, she provided an analysis and
recommendations on how to uphold the prohibition and prevention of the sale of
children.
9. Given
the lack of international consensus from the legal, normative, policy or
ethical perspective on surrogacy, the Special Rapporteur decided to develop
minimum safeguards for the protection of surrogate-born children to guide
States in efforts to ensure that the best interests of the child are duly taken
into consideration.
10. While
the best interests of the child will be the key consideration for the purpose
of the present report, the Special Rapporteur is aware that the international
and national regulatory vacuum, as well as the existing disparity in surrogacy
laws and practices, have potential implications on multiple stakeholders
involved in surrogacy arrangements. She therefore recognizes that further
efforts should be made to develop holistic empirical research that ensures the
interlinkages between the practice of surrogacy and the fundamental human
rights of equality and non-discrimination of all parties involved, in
particular children, women who act as surrogates, gamete donors and intending
parents.
11. With
a view to ensuring an inclusive and comprehensive consultation for the report,
a questionnaire focusing on the development of safeguards for the protection of
the human rights of children born from surrogacy was sent out by the Special
Rapporteur to Member States and relevant stakeholders. The Special Rapporteur wishes to thank all of the stakeholders who
provided a response to her questionnaire and welcomes the engagement
demonstrated through this exercise.
12. A
review of the literature on the topic of surrogacy was also undertaken and a
consultation was held in Geneva with interested stakeholders on 24 June 2019.
In preparation of her report, an additional consultation was also organized on
the margins of the International Surrogacy Forum organized by the Cambridge
Family Law Centre, the International Academy of Family Lawyers and the American
Bar Association at the University of Cambridge on 27 and 28 June 2019.
13. The
analysis of the responses received from States presented herein by the Special
Rapporteur follows the classification of surrogacy-related jurisdictions
developed by a number of academics.
They can be described as prohibitive; tolerant (where the jurisdiction does not
regulate surrogacy itself, but deals with its consequences, in the form of
regulating the transfer of parenthood from the surrogate to the intending
parents); regulatory; and free market (where there are no specific regulations
on who can enter into surrogacy arrangements but private contract law
determines the enforceability of arrangements between the parties). The Special
Rapporteur also received input from States where surrogacy arrangements,
whether altruistic or commercial, are prohibited and where no specific
safeguards are known to be in place. The Special Rapporteur has not received
any information from jurisdictions regulated solely by medical, administrative
or judicial authorities.
B. Ongoing
international initiatives
14. The
report is intended to complement the focus on private international law of the
project on parentage/surrogacy being carried out by the Hague Conference on
Private International Law. Since 2011, the Permanent Bureau of the Hague
Conference has been studying private international law issues in relation to
the legal parentage of children, including questions emanating from
international surrogacy arrangements.
15. The
focus of the report on safeguards will also complement the ongoing work of the
International Social Service organization in developing international
principles to ensure the protection of the rights of the child in the context
of surrogacy arrangements.
16. In
addition, in 2018, an inter-agency meeting on surrogacy and human rights was
organized by several United Nations agencies, namely the Office of the United
Nations High Commissioner for Human Rights (OHCHR), the United Nations
Population Fund (UNFPA) and the World Health Organization, in Bangkok.
Participants emphasized the need for regulation at the international level and
for legislative and policy approaches to surrogacy that are based on a human
rights framework to protect the rights of all parties involved and prevent exploitative
practices.
C. International
legal framework
17. A
preliminary analysis of the international human rights framework as it relates
to surrogacy and the sale of children can be found in the above-mentioned
report of the Special Rapporteur to the Human Rights Council (A/HRC/37/60, paras. 34–37).
18. The
primary consideration of the best interests of the child born from a surrogacy
arrangement should be the starting point of any analysis of the international
legal framework. No matter whether the State in question adopts a prohibitive,
tolerant, regulatory or free-market approach to surrogacy arrangements, the
child’s best interests must always form the basis of decision-making. In this
respect, general comment No. 14 (2013) of the Committee on the Rights of the
Child on the right of the child to have his or her best interests taken as a
primary consideration (CRC/C/GC/14)
explains that best-interests assessments must balance protection factors, which
may limit or restrict rights, and empowerment measures, which enable the full
exercise of rights. It also explains that the child’s best interests is a
threefold concept, including a substantive right; a fundamental, interpretative
legal principle; and a rule of procedure.
19. In
relation to surrogacy, in addition to giving full effect to the main parameters
outlined in general comment No. 14 (2013), the best interests of the child must
be ensured, at a minimum, by providing certainty of identity; of status; and of
parenthood. Major issues arise in the context of jurisdictions where surrogacy
contracts are null and void, unenforceable or even subject to criminal
sanctions, with grave repercussions for the child born from an international
surrogacy arrangement.
20. It
is therefore imperative that States put in place clear frameworks for the
protection of children and for ensuring the primacy of their best interests, in
the context of surrogacy arrangements. In light of the global demand for
surrogacy, even the most domestically prohibitive States must deal with the
consequences of surrogacy arrangements, and it is therefore in the best
interests of children to ensure that there is a clear decision-making framework
in place to provide clarity and certainty.
1. Non-discrimination and the right to health
of surrogate-born children
21. Consistent
with the general principles of the Convention on the Rights of the Child, it is
crucial to ensure that laws, policies and practices in relation to surrogacy
comply with the principles of non-discrimination, the best interests of the
child, the right to life, survival and development, as well as the right of
children to express their own views. In the case of international surrogacy
arrangements, it is of particular importance that different national legal
frameworks do not lead to discriminatory situations. In line with article 2 of
the Convention on the Rights of the Child, States must guarantee the rights
enshrined in the Convention without discrimination of any kind, irrespective,
inter alia, of the child’s birth. This is complemented by the second paragraph
of article 2, which provides that States parties shall take all appropriate
measures to ensure that the child is protected against all forms of
discrimination or punishment on the basis of the status, activities, expressed
opinions, or beliefs of the child’s parents, legal guardians, or family
members.
22. In
its general comment No. 7 (2005) on implementing child rights in early
childhood (CRC/C.GC/7/Rev.1),
the Committee on the Rights of the Child highlights that young children “may
also suffer the consequences of discrimination against their parents, for example
if children have been born out of wedlock or in other circumstances that
deviate from traditional values”, and recalls the responsibility of States
parties “to monitor and combat discrimination in whatever forms it takes and
wherever it occurs – within families, communities, schools or other
institutions”.
23. This
overarching principle of non-discrimination signifies that none of the rights
of the child should be impacted by the method of his or her birth, including
through a surrogacy arrangement. Specifically, the rights of the child to
identity, access to origins and to a family environment should not be adversely
affected by surrogacy. An example of good practice can be seen in the 2009
decision of the Colombian Constitutional Court which established that, even
though surrogacy is not addressed in the legal order, children born through
assisted reproductive technology, including surrogacy, have the same rights as
other children.
24. Furthermore,
the right to health of the surrogate-born child must be guaranteed regardless
of the method of birth or family environment. Article 24 of the Convention on
the Rights of the Child provides that “States Parties recognize the right of
the child to the enjoyment of the highest attainable standard of health and to
facilities for the treatment of illness and rehabilitation of health”, through,
inter alia, the provision of appropriate prenatal and post-natal health care
for mothers. The availability of information on genetic and gestational
origins, detailed below, is of vital importance in the context of children’s
right to health.
2. Nationality and identity
25. Article
7 of the Convention on the Rights of the Child, based on article 24 of the
International Covenant on Civil and Political Rights, protects the right of the
child to identity, which includes the right to birth registration, the right to
a name, the right to acquire a nationality, and the right, as far as possible,
to know and be cared for by his or her parents.
26. The
Human Rights Committee, through its general comment No. 17 on the rights of the
child, states that the rights provided under article 24 of the International
Covenant on Civil and Political Rights “should be interpreted as being closely
linked to the provision concerning the right to special measures of protection
and it is designed to promote recognition of the child’s legal personality”.
27. At
the regional level, the American Convention on Human Rights also provides for
the right to a name and to a nationality (articles 18 and 20). The African
Charter on the Rights and Welfare of the Child also includes the right to a
name, to birth registration and to a nationality (article 6). Article 8 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights) calls for the respect of private and family life,
which the European Court of Human Rights has interpreted to include the right
to establish details of their identity as individual human beings.
Nationality and statelessness
28. The
obligations contained in article 7 are of fundamental importance for the rights
of the child born of surrogacy. The obligation to register births is essential
to prevent abduction, sale of or traffic in children, while the right to acquire
a nationality requires States to prevent statelessness of children as part of
the right to identity. A legitimate concern arises in particular regarding
risks of statelessness for surrogate-born children. In the context of
international surrogacy arrangements across countries with different
legislation or regulation, there is a real risk that a child will be unable to
receive the nationality either of his parents or of the State where he or she
was born.
29. For
example, in the case of Baby Manji Yamada v. Union of India in 2008,
there was a situation of potential statelessness. Following the divorce of the
intending Japanese parents, the surrogate-born child was left in India without
documentation as neither the Japanese authorities (who only recognize the
surrogate as the mother) nor the Indian authorities (who do not allow adoption
by single parents) were willing to recognize legal parentage between the child
and the intending father. The Supreme Court of India finally decided to issue a
certificate of identity to enable the surrogate-born child to travel to Japan
with the father.
30. In
this respect, States must bear in mind, that they “are required to adopt every
appropriate measure, both internally and in cooperation with other States, to
ensure that every child has a nationality when he [or she] is born”, as
expressed by the Human Rights Committee in its general comment No. 17.
Identity
31. In
addition to the obligation to ensure the child’s birth registration and
nationality under article 7, the Convention on the Rights of the Child
establishes the obligation, through article 8, to “respect the right of the
child to preserve his or her identity, including nationality, name and family
relations as recognized by law without unlawful interference”. States parties also
have the obligation to provide a remedy in case of illegal deprivation “of some
or all of the elements of his or her identity”.
32. Although
surrogacy changes the constitutive elements of identity, by breaking the link
between genetic, gestational and social parenthood, the fundamental rights of
the child remain the same. From the child’s perspective, genetics, gestation
and the exercise of parental responsibility are all a part of the constitutive
elements of identity. The right of the child to birth registration, to a name,
to a nationality and to know and be cared for by his or her parents, as far as
possible, should not be affected by the method of the child’s birth. In
particular, the Special Rapporteur notes that a refusal to grant legal recognition
to children born through surrogacy arrangements by prohibitionist States can be
detrimental to children’s best interest and lead to violations of the rights of
the child.
33. In
the cases of Mennesson v. France and Labassee v. France (refusal
to grant legal recognition in France to parent-child relationships that had
been legally established in the United States of America between children born
as a result of surrogacy arrangements and their intending parents, with only
the father having a genetic link with the child), the European Court of Human
Rights noted that France had violated the child’s right to respect for privacy
under article 8 of the European Convention on Human Rights. Specifically, the
Court concluded that the non‑recognition by authorities of parentage between
the intended parents and the child, born through a gestational surrogacy
arrangement in California, violated an essential aspect of the identity of
individuals, namely the legal parent-child relationship. Most importantly, it
underlined that the paramount best interests of the child outweighed the
authorities’ aim to deter its nationals from violating national law on
surrogacy.
3. Access to origins
34. The
right of access to origins significantly overlaps with the right to identity,
as a constitutive element of the latter right, as stipulated in the Convention
on the Rights of the Child under article 7 on the right of the child to know
and be cared for by his or her parents, as far as possible, and article 8, on
the preservation of family relations.
35. Through
its concluding observations, the Committee on the Rights of the Child has
consistently called for respect of the right of children to access to
information about their origins in the context of assisted reproductive
technologies, with often a specific reference to surrogacy. The right of access to origins can also be particularly important
for the right to health of the child born through surrogacy, as protected under
article 24 of the Convention on the Rights of the Child.
36. While
surrogacy is a relatively new phenomenon, there are also many lessons to be
learned from the practice of adoption, where access to information on origins
is also of particular importance. In its general comment No. 14, the Committee
on the Rights of the Child underlined that, as part of the obligation to
guarantee the identity of the child in the context of adoption and family
separation, it is in the child’s best interests to have “access to the culture
[…] of their country and family of origin, and the opportunity to access
information about their biological family”. Similarly, in the Declaration on
Social and Legal Principles relating to the Protection and Welfare of Children,
with Special Reference to Foster Placement and Adoption Nationally and
Internationally, the “need of a foster or an adopted child to know about his or
her background should be recognized by persons responsible for the child’s
care, unless this is contrary to the child’s best interests”.
37. Moreover,
the European Court of Human Rights, through its jurisprudence, has determined
that “everyone should be able to establish details of their identity as
individual human beings and that an individual’s entitlement to such
information is of importance because of its formative implications for his or
her personality” under the respect for private life provided by article 8 of
the European Convention on Human Rights.
38. In
light of this, the Special Rapporteur wishes to emphasize that a blanket
enforcement of anonymity for gamete donors, and/or the surrogate, including by
only recording the intending parents on the birth certificate, will prevent the
child born from a surrogacy arrangement from having access to his or her
origins. This is a particularly common violation of the rights of the child and
is amplified in the case of international surrogacy arrangements. For example
in India, the Surrogacy (Regulation) Bill 2016 proposes that the appropriate
authority must preserve details of surrogacy arrangements, but there is no
provision for children to access this information. Conversely, under a new law
in Thailand, information does not have to be preserved on either the surrogate,
or the gamete donors. Under such an arrangement, children would not have any
mechanism for finding out information on their genetic and biological origins.
4. Family environment
39. In
the preamble to the Convention on the Rights of the Child, the family is
recognized “as the fundamental group of society and the natural environment for
the growth and well-being of all its members and particularly children” and as
such it should receive the necessary protection and assistance.
40. It
is important to note that the family is not defined under international human
rights law and that the Human Rights Committee in its general comment No. 19 on
the family stipulates that it is “not possible to give the concept a standard
definition”. Several other treaty bodies have also underlined that the concept
of the family must be understood “in a wide sense” and “in accordance with
appropriate local usage”.
There is thus no definition of the family in the context of surrogacy under
international human rights law.
41. The
Convention on the Rights of the Child establishes, under article 7, the right
of the child to be cared for by his or her parents, as far as possible. The
importance of the family for the child is reinforced under article 5, on the
States’ respect of family’s duties, article 9, on separation from parents,
article 10, on family reunification, article 16, on family life, and article
18, on the role of the family for the upbringing of the child. Strong
protections for the role of the family, and the family environment, also exist
at the regional level, under the European Convention on Human Rights (article
8), the Charter of Fundamental Rights of the European Union (articles 7 and
24), the American Convention on Human Rights (article 17) and the African
Charter on the Rights and Welfare of the Child (article 18).
42. The
Convention on the Rights of the Child places strong emphasis on maintaining
family life and preventing separation unless it is in the best interests of the
child. In its general comment No. 14, the Committee on the Rights of the Child
emphasizes that “separation should only occur as a last resort measure, as when
the child is in danger of experiencing imminent harm or when otherwise
necessary; separation should not take place if less intrusive measures could
protect the child”. This is particularly the case for young children, who the
Committee cautioned in its general comments No. 7, “are especially vulnerable
to adverse consequences of separations because of their physical dependence on
and emotional attachment to their parents/primary caregivers”.
43. Surrogacy
arrangements may end in family separation, either temporary or permanent,
following the non-recognition of parentage. There is a particular risk where
international surrogacy arrangements are concluded by intended parents from
countries where surrogacy is prohibited. In light of this very real risk of
family separation, it is vital to maintain a very high threshold for the
justification of a separation in accordance with international norms and
standards.
44. The
case of Paradiso and Campanelli v. Italy illustrates the very real risk of separation of a surrogate-born
child from his intending parents following a domestic judicial decision. In
this case, the Italian authorities refused to recognize the parent-child
relationship, following the discovery that there was no genetic link between
the surrogate-born child and the intending parents, and placed the child in alternative
care. On appeal, the Grand Chamber of the European Court of Human Rights
decided that there were no de facto family ties, refusing to acknowledge the
legal parent-child relationship established abroad, and consequently dismissed
the case of the applicants. Nonetheless, the initial decision by the Chamber,
which recognized de facto family ties, and the dissenting opinion of six judges
annexed to the judgment of the Grand Chamber, who also recognized the existence
of de facto family ties, shows that this decision was complex and fraught.
45. This
case illustrates the fear of prohibitionist States having to rubber-stamp
surrogacy arrangements undertaken abroad, whether safeguards were respected or
not. To overcome this, it is of utmost importance that a trustworthy procedure
be set in place so that only international surrogacy arrangements that respect
specific safeguards are permitted, and that only those international surrogacy
arrangements would be worthy of recognition.
46. Other
domestic courts, however, have felt themselves bound to recognize the legal
parent-child relationship established abroad, despite a breach of domestic law,
on the grounds that this is necessary to guarantee the best interests of the
child.
Indeed, it will generally be decided that it is in the best interests of the
child to remain with his or her intending parents in order to preserve the
family environment. However, this is not a foregone conclusion, and judicial or
administrative reviews of international surrogacy arrangements remain vital. As
with any best interests assessment, it is an individual case-by-case process,
which may eventually determine that removing the child from his or her
intending parents is either appropriate or inappropriate, for example, where
child protection concerns are raised in relation to the intending parents.
47. Moreover,
it must be kept in mind that the Committee on the Rights of the Child has
indicated in general comment No. 14 that in “cases where the parents or other
primary caregivers commit an offence, alternatives to detention should be made
available and applied on a case-by-case basis, with full consideration of the
likely impacts of different sentences on the best interests of the affected
child or children”.
D. Safeguards
on the protection of the rights of children born from surrogacy arrangements
48. In
the absence of international regulatory frameworks, several States have already
started contemplating a variety of national safeguards. The question is, to
what extent do these regulations contain safeguards to protect the best
interests of the child born from surrogacy arrangements?
1. Data
49. In
order to effectively develop safeguards, it is vital to collect comprehensive
disaggregated data on surrogacy. The Special Rapporteur received very few
statistics on the number of surrogate births domestically or on the number of
surrogacy arrangements undertaken by citizens in another jurisdiction. Indeed,
it appears that there is no centrally collected and verified independent data
on the extent and scope of the practice. Statistics on surrogate births are
available in only a handful of jurisdictions gathered by independent
researchers rather than by Governments. In other jurisdictions there is no
information to track and monitor the scale of the practice beyond anecdotal
reporting in the media.
50. The
United Kingdom of Great Britain and Northern Ireland has been one of the two
countries to provide some data on the number of surrogacy arrangements.
However, not all surrogacy arrangements are recorded, as there is no obligation
to go through the official procedure of obtaining a “parental order” (which
would transfer parenthood from the surrogate to the intending parents under
domestic law). As of 10 June 2019, the number of parental orders obtained
in England and Wales following surrogacy were: 407 in 2016; 332 in 2017; and
176 in the first six months of 2018. In only two cases over the last five years
the surrogacy arrangement broke down and the Family Court had to intervene to
decide on custody and parental responsibility. Australia has also provided data on the number of surrogacy
arrangements undertaken abroad and some data on national arrangements at the
State level: in the 2016–2017 period, there were 139 cases; and in 2017–2018,
there were 175 cases.
51. With
regard to the tracking of abuses, in 2019 Portugal installed court-management
software to collect data related to crimes committed in the context of
surrogacy arrangements.
2. Best interests assessments
52. Jurisdictions
differ as to when, and if, a best interests assessment should be carried out in
relation to a child born through a surrogacy arrangement. In Greece, Israel and
South Africa, administrative and judicial bodies are involved during
preconception assessments of the eligibility of intending parents, and
authorization must be given for the fertilization to take place. This is
intended to indirectly protect the best interests of the child by ensuring that
the parents are suitable. In Ireland, under the draft Assisted Human
Reproduction Bill, there will be a requirement of pre‑authorization for all
surrogacy arrangements.
In jurisdictions where an agreement is (partly) enforceable, certain procedural
and substantive requirements should be met and approved by the relevant
administrative or judicial authority. It is up to such authorities to ensure
that the best interests of the child and other procedural requirements are the
foremost consideration of the approving authority. In South Africa, for
example, the High Court must consider the child’s best interests before an
agreement is confirmed.
53. Alternatively,
in some jurisdictions, the authorities are involved only after the birth of the
child and are responsible only for deciding whether to transfer parenthood from
the surrogate to the intending parents.
54. Post-birth
best interests assessments are an essential measure to guarantee the rights of
the child in the context of surrogacy arrangements. In Spain, where surrogacy
is prohibited, the registration of a child born abroad from a surrogacy
arrangement is only possible following a judicial review, which includes the
necessity of ensuring that the best interests of the child and the rights of
the surrogate have not been not violated. A
similar procedure exists in Switzerland, which prohibits surrogacy, where, in
the case of international surrogacy arrangements, authorization to enter the
country for the family is denied until documents proving parentage and the
legality of the arrangement in the country where it occurred can be provided.
55. The
practice of examining the arrangement before entry authorization is given has
been explicitly approved by the European Court of Human Rights in the case of D.
and Others v. Belgium,
in which the Court rejected the complaint regarding a temporary separation due
to the refusal to provide the intending parents with a travel document for
their surrogate-born child based on the argument that it was within the State’s
purview to undertake checks before allowing the child to enter Belgium, with
several legitimate aims, in particular the protection of the rights of the
surrogate and the child.
56. The
United Kingdom of Great Britain and Northern Ireland has established “parental
orders” to transfer parentage in the context of surrogacy arrangements. The
Court can only issue such an order where it is determined that to do so would
be in the best interests of the child. To help evaluate this, a parental order
reporter is appointed as a guardian to review, inter alia, the welfare of the
child.
Likewise, in Israel, a social worker is named as the child’s guardian until,
within seven days of birth, a parental order is granted to the commissioning
parents. The court must issue this order unless it is satisfied, after
receiving a report from a social worker, that it would not be considered
incompatible with the welfare of the child.
57. Post-birth
evaluations of the child’s best interests may be made difficult, however, by
the fact that the child has already been born and is living with the intending
parents. In such circumstances, courts may find it difficult to undertake a
thorough and effective evaluation, as it will rarely be in the child’s best interests
to refuse to recognize or grant parenthood that reflects the child’s lived
reality. Although justified, the fear of being forced to recognize the
situation of the child as a fait accompli should not dilute the importance of
judicial or administrative reviews of international surrogacy arrangements. As
with any best-interests assessment, reviews should be carried out on an
individual case-by-case process, through which it may be determined that
removing a child from the intending parents is preferable.
3. Identity rights and access to origins
58. In
the context of surrogacy, guaranteeing the rights to identity and access to
origins, is particularly complex. Some jurisdictions have removed donor
anonymity while others are facing obstacles to the disclosure of such
information to persons who would be entitled to know an individual’s (genetic)
origin. In all surrogacy cases, there will be the need not only to ensure
access to information on genetic origins but also information on the surrogate.
59. In
some countries, safeguards protecting access to origins are considered in the
context of birth registration and the parental order process. There are several
approaches by States that have an impact on the type of necessary safeguards
guaranteeing the right of the child to identity and access to origins. In most
jurisdictions that either prohibit or tolerate surrogacy arrangements, legal
parenthood at birth is assigned according to traditional rules of parenthood (mater
semper certa est), which ensures that there will be a record of the
surrogate. For example, in the United Kingdom, the surrogate, as the legal
mother at birth, will be listed on the original birth certificate and the child
will be issued a new, amended version when the parental order is made
transferring parenthood to the intending parents.
60. On
the other hand, in regulated and free-market jurisdictions, legal parenthood is
attributed to the intending parents directly, either before or after the birth,
and the name of the surrogate is not necessarily recorded in any official
document. In this context, essential safeguards are necessary to protect
identity rights and access to origins. For example, in certain jurisdictions
within the United States, intending parents are recognized before birth as the
sole parents of the surrogate-born child. The Surrogacy (Regulation) Bill of
2018 in India also establishes a system of determining parentage before the
child is born.
61. It
is of fundamental importance that States ensure that a record is kept with
details of the surrogate and of the gamete donors, where possible. Many States
are already starting to recognize this, including: Ireland, where, under the
draft Assisted Human Reproduction Bill, a National Surrogacy Register would be
established, containing information regarding the surrogate, intending parents
and donors, and would be accessible for surrogate-born children from the age of
18 onwards;
and similar suggestions have been made by the Law Commission of England and
Wales and the Scottish Law Commission in their recent proposals for a new law
on surrogacy.
62. In
the context of gamete donation, many States already have established
protections ensuring children’s access to information regarding their genetic
parents. In Argentina, the Civil and Commercial Code gives individuals born
from an assisted reproductive technology the right to access medical records of
the donor(s), when relevant, and, under judicial review, to obtain the identity
of the donor(s).
Sweden does not allow anonymous donations and preserves information about the
donor’s identity for the child to access when they have reached sufficient
maturity.
In April 2019, the Parliamentary Assembly of the Council of Europe came to a
similar conclusion, recommending that “anonymity should be waived for all
future gamete donations in Council of Europe member States, and the use of
anonymously donated sperm and oocytes should be prohibited”. Furthermore, in Portugal, the anonymity of all third-party donors
of genetic material was decided to be unconstitutional as it violated the
personal identity and the development of personality of persons born from
surrogacy arrangements.
On the other hand, in South Africa, children have the right to access
information on their genetic origins when they reach 18; however, the identity
of the surrogate, who is usually not the genetic parent, is not disclosed.
63. When
considering access to information on origins, there are many close links to
legislation and jurisprudence surrounding adoption. In Spain, the legal order
protects the right to access origins and to privacy of surrogate-born children,
and information relating to adoption and any change in parentage are
confidential and do not appear on the birth register. Nonetheless, the child
may access this information.
On the other hand, in Colombia, jurisprudence has developed the concept of
“biological truth”, also known as the right to know one’s origins, which
entails the right to know one’s progenitor. In this regard, and in the context
of adoption, the Colombian Institute of Family Welfare has established an
administrative process to assist individuals in search of their biological
family.
Similarly, El Salvador guarantees the right of the adopted person to know who
are his biological parents, qualifying this right as irrevocable and
imprescriptible, and also establishes the responsibility of competent
authorities to safeguard this information. Cambodia also has provisions in the context of adoption which allow
a child of appropriate maturity to access his or her records, including the
identity of his or her parents.
4. Genetic ties and the establishment of legal
parentage
64. Currently
there are no international standards clearly delineating how parentage and
parental responsibility should be determined in the context of surrogacy in
general, and in international surrogacy arrangements, in particular. As
indicated by various jurisdictions, the approaches adopted by States vary, and
parentage is established before or after birth depending on the country in
question. In addition, States often have different parentage and parental
responsibility rules for traditional and gestational surrogacy, which also
depend on whether one parent or both intending parents have a genetic
connection to the child.
65. The
complex challenge of determining parentage is partly alleviated when the
original intention under the surrogacy arrangement remains the intention of all
parties after birth of the child. Regardless of the legal system, in the
majority of cases, the surrogates voluntarily carry through with their
intention to transfer parentage and parental responsibility as part of the
contractual post-birth voluntary waiver.
66. Similarly,
a well-regulated system overseeing the legality of proceedings through a
designated oversight body, including pre-approval of surrogacy arrangements, a
genuinely independent counselling process, the screening of both intending
parents and surrogates and the voluntary consent of the surrogate, will
effectively diminish the likelihood of proceedings into the determination of
legal parenthood that place the child in a situation of uncertainty.
67. Fundamentally,
a desire for certainty cannot justify legal regimes built upon ignoring the
rights of the child, surrogate or intending parent(s). Practically, neither a
surrogate nor intending parent(s) should be forced to maintain parental
responsibility involuntarily, for it is generally contrary to the best
interests of a child to be raised under such circumstances.
68. The
existence of a genetic link has been of fundamental importance when determining
parenthood, particularly following an international surrogacy arrangement. For
example, in South Africa, provided that she is genetically related to the
child, a surrogate can challenge a pre-established parentage agreement within
60 days and parental rights will revert to her. The opportunity for the
surrogate to challenge parentage appears to be particularly important when
there is a significant change in circumstances that is detrimental to the
rights of the child.
69. In
a number of European jurisdictions, the decision as to whether or not to
recognize parenthood established abroad has been strongly influenced by the
rulings of the European Court of Human Rights, which has ruled, in specific
cases, that where a child has a genetic connection with one of the intending
parents, the child’s right to respect for private life should lead to the
recognition of legal parenthood. This line of reasoning can also be seen in a
decision by the German Federal Court of Justice, which has ruled that a foreign
decision on parenthood must be recognized if at least one of the intending
parents is genetically related. Reversing a previous decision, the Court held
that recognition was not against public policy, even though surrogacy is
illegal within Germany, and was based on the best interests of the child, since
the foreign law allowing the transfer of parenthood to the intending parents
does not contravene fundamental principles of German law.
70. The
importance of genetics is also revealed in the decision of the Swiss Federal
Court of Justice of 21 May 2015, which, while accepting the parenthood of the
intending parent who was genetically related to the child, refused to recognize
a judgment by the State of California in relation to the
non-genetically-related intending parent. The decision of the Court is based on
the wish to deter Swiss citizens from going abroad to circumvent the national
prohibition on surrogacy. Thus, when considering the best interests of the
child, the Court focused on promoting children’s welfare generally by
preventing child trafficking and protecting children from being treated as
commodities rather than on the individual welfare of the child in question. The
Court pointed out, however, that the non-genetically-related intending parent
could, nonetheless, adopt the surrogate-born child.
71. On
the other hand, the Supreme Court of Mexico, in a 2018 case on surrogacy,
reiterated that one of the fundamental elements in the determination of
parentage was the “procreational will” of the parents, which is defined as the
will to have a child even with no biological link and to assume all the derived
responsibilities. A
similar concept of “procreational will” has been applied by courts in Argentina
in order to recognize parentage in the context of surrogacy.
72. The
development of such a concept and related procedures would provide a safeguard
in respect to parentage for certain specific cases where there is no genetic
link between the surrogate-born child and the intending parents.
E. General
considerations
1. Sale of children
73. Following
the presentation of her report on surrogacy and the sale of children in 2018,
the Special Rapporteur received substantial feedback both during her
interactive dialogue with the Human Rights Council and in its aftermath. She
identified three main responses to her conclusions: (a) several States and
civil society organizations rejected the premise of sale outright in the
context of surrogacy, arguing that at no point is there a transaction for the
child; (b) a substantial number of stakeholders expressed concern about the
conflation of sale with surrogacy, which could lead to the criminalization of
surrogates and intending parents as well as to possible violations of the right
to sexual and reproductive health; and (c) a number of other States and civil
society organizations argued for an outright ban of surrogacy, with no
exception.
74. Taking
into consideration the above observations, the Special Rapporteur reiterates
the urgent need for holistic regulation of surrogacy, in particular when it
comes to international surrogacy arrangements. The existence of oversight
mechanisms is of vital importance in order to prevent any sale and exploitation
of children in the context of surrogacy.
75. Moreover,
the rights of access to origins and identity are a safeguard and response to
illicit activities, as they help to create greater accountability, ensure
proper record-keeping and appropriate transparency.
76. Furthermore,
with regard to the specific notion of the sale of children, although the
analysis of the matter as it relates to surrogacy still stands (A/HRC/37/60, paras. 41–51),
it is necessary to qualify it in additional detail in view of the varying
realities across the world. The first priority must be the prevention of the
commodification of children, and specifically the rejection of a “right to a
child” (ibid., paras. 64 and 65), while guaranteeing the rights of all the
other involved stakeholders.
77. Nonetheless,
a strict interpretation of the notion of the sale or trafficking of children as
a criminal offence can have dire consequences. For example, in Cambodia 43
surrogates were arrested and detained under the provisions of article 16 of the
Law on Suppression of Human Trafficking and Sexual Exploitation. The surrogates
were only released under the condition of keeping and raising the
surrogate-born children. The case indicates the risks of a rigid application of
criminal law that does not take into account the best interests of the child or
the rights of the surrogates and intending parents.
78. In
such contexts, the real threat of exploitation and commodification of children,
and potentially of surrogates, is often related to the role of intermediaries.
In general, this is due to the for-profit motives of private intermediaries,
who have, as a guiding motive, the successful completion of the surrogacy
agreement with little to no regard for the rights of those involved.
79. Consequently,
it is fundamental that appropriate safeguards are in place regarding sale of
children in the context of surrogacy. Such safeguards should focus on free and
informed consent by surrogates and the role of intermediaries and should not
lead to the criminalization of surrogates. In respect to intending parents
involved in cases of foul play, it must be kept in mind that criminalization
will not normally be in the best interests of the child and, as indicated
previously in the case of such offences, “alternatives to detention should be
made available and applied on a case-by-case basis” (general comment No. 14,
(2013)).
2. Right to privacy
80. Although
the right to privacy does not fall under the scope of the mandate of the
Special Rapporteur, she nonetheless wishes to draw attention to this crucial
question and encourages an in-depth analysis of the issue by other human rights
mechanisms with a view to finding the right balance between the rights to
identity and access to origin of children, as set out above, and the right to
privacy of surrogates and gamete providers.
81. Within
the Convention on the Rights of the Child, two exceptions are already present
to the rights to identity and access to origin, namely feasibility and the
primary consideration of the best interests of the child. Moreover, countering
claims to privacy that would limit access to origins is increasingly
irrelevant, given the increased availability of DNA-based data through which
children born of assisted reproductive technologies can identify genetic
relatives.
82. At
the domestic level, attempts have been made to reconcile these rights. For
example in Victoria, Australia, where all donor-conceived children have equal
access to information regardless of their mode of conception, there is a
contact veto/ preference system that allows them to access identifying
information on the donor, while the donors can decide if they wish to have no
contact or a certain type of contact with their descendants. When donor-conceived children born from 2010 apply for their birth
certificate as adults they will be informed that more information is available
about their birth. If they are not already aware that they are donor-conceived,
they are likely to find out when they ask about this additional information.
83. The
right to privacy of surrogate-born children, or children born of donated
gametes, is also important. In many jurisdictions, a birth certificate must be
presented to register for official services such as schooling, health care or
State benefits. States must be careful to preserve the right of such children
not to have their origins known by anyone who sees their birth certificate. One
solution would be to preserve this information in a separate record, rather
than on the birth certificate, while allowing children to have access to this
record once they are sufficiently mature.
3. Sexual and reproductive health
84. As
stated in the previous report of the Special Rapporteur to the Human Rights
Council (A/HRC/37/60, para.
11), and reiterated herein, no information set out in either report should be
interpreted as a restriction of women’s autonomy in decision-making or of their
rights to sexual and reproductive health.
85. Although
considerations in this context do not fall strictly within the scope of the
mandate of the Special Rapporteur, it is fundamental to reiterate concisely the
core international human rights norms and standards as they relate to sexual
and reproductive health.
86. In
line with article 12 of the International Covenant on Economic, Social and
Cultural Rights, the Committee on Economic, Social and Cultural Rights produced
general comment No. 22 on the right to sexual and reproductive health, a core
tenet of which is “the right to make free and responsible decisions and choices,
free of violence, coercion and discrimination, regarding matters concerning
one’s body and sexual and reproductive health”.
87. Moreover,
in paragraph 7.3 of the Programme of Action, adopted at the International
Conference on Population and Development in 1994, reproductive rights are
explicitly defined to include “the recognition of the basic right of all
couples and individuals to decide freely and responsibly the number, spacing
and timing of their children and to have the information and means to do so,
and the right to attain the highest standard of sexual and reproductive
health”.
88. It
should be noted that the Inter-American Court of Human Rights has recognized
that the choice to procreate through assisted reproductive technologies is part
of the rights to humane treatment and personal liberty and the rights of the
family.
89. Lastly,
as part of the considerations under sexual and reproductive health rights, it
is crucial to ensure that access to a whole range of health facilities, goods,
services and information is not discriminatory. In the context of surrogacy
arrangements, any restriction based on the sexual orientation or gender
identity of the intending parents constitutes a violation of their rights.
IV. Conclusions and recommendations
A. Conclusions
90. There
is no doubt that surrogacy offers new opportunities for family formation for
those who are otherwise unable to have a child, but it also presents new legal
and ethical challenges. There is an undeniable need to develop standards,
empirical studies and further research on its long-term impact on all
stakeholders concerned, especially children.
91. The
Special Rapporteur has observed that the prohibition of surrogacy arrangements
carried out abroad is problematic as domestic laws prohibiting surrogacy will
often be sidestepped. States will inevitably be confronted with surrogacy
arrangements carried out abroad, leading to issues surrounding, inter alia,
rights to identity, access to origins and the family environment for the child.
Such surrogacies should neither be automatically rejected nor accepted, the
only valid consideration being the best interests of the child.
92. A
pragmatic response on the part of prohibitionist jurisdictions is necessary and
should be in line with human rights standards, including sufficient safeguards
to deal with commonly observed violations of the rights of the child. National
legislative and policy approaches to surrogacy should be based on a human
rights framework to ensure the human rights of all parties involved and to
prevent exploitative practices.
93. Conversely,
in the context of international surrogacy arrangements, jurisdictions allowing
surrogacy should verify that intending parents coming from abroad will be able
to return to their countries of origin with their surrogate-born child, and
that legal parentage will be recognized by the authorities of their country of
origin, as part of the pre-birth assessment and authorization.
94. The
analysis of the various submissions received shows that, even though the best
interests of the child are extensively mentioned in most legislation reviewed,
there is often a lack of detail as to the constitutive elements of such
determinations, although, in the specific context of surrogacy, assessments and
determinations regarding the best interests of the child are fundamental. The
question as to whether the determination of the best interest of surrogate-born
children should be carried out through judicial or administrative proceedings
is the discretionary decision of the State and depends on the circumstances of
the case.
95. As
can be observed from several examples presented herein, the judiciary is often
faced with the complex and difficult choice between acknowledging a fait accompli
as far as parentage is concerned, even when no safeguards were in place, and
taking an autonomous decision in order to guarantee the rights of the child.
96. Governments
should be encouraged to develop international norms through, for example, the
Hague Conference on Private International Law project on parentage/surrogacy.
The development of an international convention through the Hague Conference
will build bridges between different legal systems around parentage issues and
ensure legal certainty for children and parents in international surrogacy
arrangements. The project will not, however, resolve all issues as it is not
about substantive law and is not intended to unify practices around surrogacy.
97. An
interim solution in the form of a model law to be adapted and contextualized in
various jurisdictions, and/or a set of commonly agreed minimum principles
governing the practice from a multidimensional and holistic human rights
perspective is needed to regulate surrogacy arrangements.
98. With
such diverging approaches to surrogacy across the world, the tabling of an
international instrument regulating surrogacy risks facing severe hurdles.
Nonetheless, in view of the very real risks to the rights of the child and the
rights of the other involved stakeholders, it is essential to develop a set of
minimum safeguards that can be applied regardless of the stance of States on
surrogacy. The following recommendations will attempt to develop a set of
minimum standards to safeguard the rights of children born from surrogacy
arrangements.
B. Recommendations
1. At the national level
99. The
Special Rapporteur calls upon States to:
(a) Ratify the Convention on the Rights of
the Child and its three Optional Protocols;
(b) Incorporate in national legislation the
prohibition of sale of children, as defined by the Optional Protocol to the
Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography.
100. With
regard to the child’s best interests assessment and safeguards for the
protection of the rights of children born from surrogacy arrangements, the
Special Rapporteur calls upon States to:
(a) Ensure that the core principle of the
best interests of the child as stipulated in article 3, paragraph 1, of the
Convention on the Rights of the Child and further expanded in general comment
No. 14 of the Committee on the Rights of the Child, is the paramount
consideration in all judicial and administrative decisions, relevant
legislation and public and decision-making policies and practices concerning
surrogate-born children, with due consideration for the requirement of a
rights-based approach, engaging all stakeholders;
(b) Review and, where necessary, amend
domestic legislation to implement the best interests of the child through the
application of a threefold dimension of the concept of the child’s best
interests, namely: (i) the substantive right of children to have their best
interests assessed and taken as the primary consideration; (ii) a fundamental,
interpretative legal principle, according to which the most effective serving
interpretation is chosen as a legal interpretation; and (iii) a rule of
procedure requiring that a determination of the best interest of the child be
incorporated as part of the decision-making process affecting the child;
(c) Determine, on a case-by-case basis, the
substantive content with regard to the concept of the child’s best interests
through the interpretation and implementation of article 3, paragraph 1, of the
Convention on the Rights of the Child, allowing legislators, judges,
administrative, social and/or educational authorities to clarify the concept
and to make concrete use thereof, according to the specific situation of the
child concerned, taking into account the personal context, situation and needs
of the child;
(d) In consultation with stakeholders
concerned, including, where possible, with surrogacy-born children, initiate
legal reforms to bring up to date the existing laws, regulations or practices
for the establishment, recognition and contestation of legal parentage,
indicating specifically how the child’s best interests are factored into the
context of surrogacy arrangements and indicating cases where further judicial
oversight of a parental order would be required and retained;
(e) Ensure that the judiciary, legislative
bodies, consulate services overseas and immigration officers, policymakers and
decision makers involved in directly or indirectly in decisions impacting
surrogate-born children are aware of and trained in the best-interests
determination and in the minimum safeguards applied by the receiving country in
the context of international surrogacy arrangements.
Non-discrimination
and the right to health of surrogate-born children
101. The
Special Rapporteur further calls on States to take the following steps with
regard to non-discrimination and the right to health of surrogate-born children:
(a) Guarantee the principle of
non-discrimination of surrogate-born children on prohibited grounds, such as
gender, race, sexual orientation, religion or beliefs, cultural identity,
marital status (of intended parents), nationality, class/caste, disability or
other status;
(b) Make available health insurance
coverage for the surrogate and the child born from a surrogate arrangement and
determine who should be responsible for the coverage in the national
health-care system.
Identity rights,
access to origins and family environment
(c) Ensure that judicial decisions, laws,
policies and practices in relation to surrogate-born children respect their
right to identity and are duly taken into consideration in assessing the
child’s best interests;
(d) Preserve, in all cases, all pertinent
information, and establish and maintain registers and national records
containing information about the genetic and gestational origins of
surrogate-born children, through which children can seek to access, in line
with their evolving capacity and maturity and subject to the cultural context
of the country, in particular with regard to the use of donor gametes:
regardless of the determination of parentage, there should be comprehensive
safeguards to ensure that records of the surrogate arrangement are kept in
order to enable the surrogate-born children to have access to information about
their origins;
(e) Ensure the right of surrogate-born
children to access information about their identity and origin, including their
cultural, ethnic, religious and linguistic background, in line with their
evolving capacity and in accordance with the legal regulations of the given
country;
(f) Put in place a mechanism to enable the
application process for registration of all children born through surrogacy
arrangements, irrespective of the intention of the intending parents to apply
for a parental order in the receiving country;
(g) Initiate a post-birth review (judicial
or administrative) to assess the compliance of surrogacy arrangements with
procedural and other minimum safeguards requirements, with a view to assessing
the legal parenthood established domestically or abroad while ensuring that the
child is not left in a situation of legal uncertainty;
(h) Develop policies and international
agreements to minimize the separation of surrogate-born children from the
intending parents during the review of the transfer of legal parenthood, and
avoid putting the burden of responsibility on surrogates against their will;
(i) In cases of abandonment or of refusal
to transfer legal parenthood, there should be a clear framework ensuring that
the parental responsibility of the intending parents and/or surrogates towards
the surrogate-born child cannot be relinquished until a suitable
alternative-care solution has been found.
Data
102. The
Special Rapporteur further calls on States to take the following steps with
regard to data:
(a) Put in place measures to monitor,
record and collect in a centralized manner comprehensive and disaggregated data
on the extent and the scope of surrogacy arrangements, both domestic and
overseas, parental orders issued and the follow-up arrangements carried out in
line with the best interests determination of the surrogate-born children;
(b) Ensure the collection of data on
intermediaries and fertility clinics and others facilitating surrogacy
arrangements.
Protecting
children from sale, abuse and exploitation
103. The
Special Rapporteur reiterates, in this regard, her recommendations from her
previous report on surrogacy (A/HRC/37/60)
and calls on States to:
(a) Ensure that laws and policies
prohibiting the sale, trafficking, abuse and exploitation of children, as well
as general safeguards against the sale and trafficking of children, apply in
the context of surrogacy;
(b) Where intermediaries are operating,
register and closely regulate their operation in order to ensure that the
commodification of children and ultimately the sale of children do not occur.
2. At the international level
104. The
Special Rapporteur welcomes other ongoing international initiatives on
surrogacy and encourages other human rights mechanisms, in particular the
Committee on the Rights of the Child and the Committee on the Elimination of
Discrimination against Women, as well as other special procedures’ mandates and
other United Nations agencies, to look into the issue of surrogacy with a view
to developing a holistic human rights-based framework on surrogacy.
105. The
Special Rapporteur calls on the international community to support
comprehensive research and data collection on existing surrogacy practices, in
particular on the experience of all involved stakeholders, namely the
surrogates, intending parents and surrogate-born children, and to consider
developing a model law based on the available scientific evidence and good
practices on how States have been applying the principle of the best interests
of the child in the context of domestic law and a public international law
governing international and transnational surrogacy arrangements.
106. The
Special Rapporteur reiterates her call on the international community to
support the work of the Hague Conference on Private International Law, in
particular in relation to the project on parentage/surrogacy; and calls on the
Hague Conference to include safeguards, to be complied with prior to conception,
during pregnancy and post-birth, to enable the recognition of legal parentage.
107. The
Special Rapporteur encourages the International Social Service organization to
continue developing international principles for the protection of the rights
of the child in the context of surrogacy, in close consultation with relevant
stakeholders.
108. The
Special Rapporteur reiterates her earlier recommendation that nothing in these
recommendations should imply that women, including women who act as surrogates,
cannot make independent decisions about the autonomy of their own bodies during
pregnancy.
