Summary

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.

The report noted the presence of potentially exploitative practices in relation to children born from surrogacy arrangements, in both unregulated and regulated contexts, and provided analysis and recommendations on implementing the prohibition of the sale of children as it relates to surrogacy. In particular the Special Rapporteur invited all States to protect the rights of all surrogate-born children, regardless of the legal status of the surrogacy arrangement under national or international law, including by protecting the best interests of the child, protecting rights to identity and to access to origins and cooperating internationally to avoid statelessness.

The report was aimed to be a stepping-stone for further research on surrogacy by other human rights mechanisms and UN agencies, in particular as it relates to women’s rights. An expert group meeting on surrogacy and human rights was organized by several United Nations agencies in Bangkok in 2018 and it emphasized that legislative and policy approaches to surrogacy should be based on a human rights framework to ensure the rights of all parties involved and prevent exploitative practices.

While focusing on safeguards for protection of the rights of the child, the Special Rapporteur also recognizes the indivisibility of human rights and that such safeguards should be in line with the protection of human rights overall, given that surrogacy impacts the realization of rights for multiple stakeholders, particularly women who act as surrogates, gamete donors, and intending parents.

This new report intends to supplement her previous report with reflections on safeguards under public international law from the perspective of the rights of the child and is intended to complement the private international law focus of the Hague Conference on Private International Law (HCCH) project on parentage/surrogacy. The new report’s focus on safeguards will also complement the work of the International Social Service in developing international principles to ensure the protection of the rights of the child in the context of surrogacy arrangements.

While there are few comprehensive statistics, it is generally understood that surrogacy as a reproductive practice is increasing. Contemporary practices of surrogacy offer new opportunities for family formation for those who are otherwise unable to have a child, but they also introduce new legal and ethical challenges. Furthermore, the international and national regulatory vacuum that exists in relation to international surrogacy arrangements leaves children born through this method vulnerable to breaches of their rights.

With a growing industry driven by demand, where commercial interests can be a predominant factor, surrogacy is an area of concern for the rights and protection of the child. There is also concern that the practice of engaging surrogate mothers in States with emerging economies to bear children for more wealthy intending parents from other States entails potential power imbalances and thus risks for both the children and surrogate mothers. Concerns have also been raised that efforts to regulate, or ban, surrogacy practice can be discriminatory or undermining of women’s autonomy to make decisions about their bodies.