Surrogacy and the sale of children

Side event, 37^th session of the Human Rights Council, 6 March 2018

On 6 March 2018, in the framework of the 37^th session of the UN Human Rights Council, the Special Rapporteur on the sale and exploitation of children organized a side event, with the support of the Permanent Delegation of the European Union, the Permanent Mission of Australia and the Permanent Mission of Uruguay, on surrogacy and the sale of children. The side event was organized in the context of the presentation of the thematic report of the Special Rapporteur to the Human Rights Council.

Summary

In his welcoming remarks, H.E. Mr. Ricardo González Arenas, Ambassador and Permanent Representative of Uruguay to the United Nations in Geneva, commended the report of the Special Rapporteur on surrogacy and the sale of children. H.E. Mr. González Arenas expressed concerns about the human rights of surrogate mothers and children born from these arrangements. Surrogacy arrangements involving intending parents from wealthy States and surrogate mothers from emerging economies were particularly worrying as they involved an inherent power imbalance that opened the door to various forms of exploitation of both the mother and the child. H.E. Mr. González Arenas called for a human rights based approach which would safeguard from abuses in the context of surrogacy. Moreover, he insisted on the role that international regulation should play in guiding national responses to surrogacy. In Uruguay, the national legislation provided for surrogate pregnancy only in certain cases, and women could not receive any compensation or retribution. H.E. Mr. González Arenas underscored that the best interests of the child had to be at the centre of every decision regarding the transfer of parentage and parental responsibility.

In her introductory remarks, the Special Rapporteur, Ms Maud de Boer-Buquicchio, explained that she was mandated by the Human Rights Council to identify new patterns of sale of children. Her thematic report analyzed surrogacy from a child rights perspective and in particular the sale of children. It was essential to assess how surrogacy can lead to the sale of children. Implicit in the thematic report was the rejection of any right to a child, which was not a concept under international law. The Special Rapporteur underlined that commercial surrogacy as currently practiced usually constituted sale of children under human rights law.

Professor Olga Khazova addressed the issue of rapidly developing international surrogacy which, if not properly regulated, may lead to serious violations of the rights of those involved, first of all children. She stressed the importance of a human rights approach to designing laws on surrogate motherhood and of taking measures for the prohibition of sale of children. Ms. Khazova noted that issues of international surrogacy were recently discussed in the Committee on the Rights of the Child. Although the Committee’s position was still developing, it was clear on a number of key aspects, including the right of surrogate born children not to be discriminated in their legal status and to get access to information about their origin, and a need for appropriate screening procedures for prospective parents of children born abroad through international surrogacy arrangements. Ms. Khazova noted that under Russian law, only gestational surrogacy was permitted, and a surrogate mother had the right to keep the child after birth. Nonetheless, in accordance with the recent Russian Supreme Court explanations, the best interests of the child had to be the decisive factor should the surrogate mother refuse to give up her child. Finally, Ms. Khazova stressed the need to distinguish between gestational and traditional surrogacy when developing legal regulation on surrogate motherhood both at a national and international levels.

The Honourable John Pascoe presented the past and present trends of the commodification and sale of children. Mr. Pascoe focused on several cases involving traffickers and surrogacy brokers. He warned that the sale of children through commercial surrogacy was a multibillion-dollar business, in which there was a demand and a profit to be made. The market had opened up for surrogacy brokers that controlled and trafficked pregnant women. He referenced cases of Indian women being moved to Nepal, as well as Cambodian and Laotian women trafficked to Thailand. Mr. Pascoe outlined the current regulatory gaps which enabled the abuse and trafficking of children in surrogacy arrangements. He mentioned the recent Thai case in which custody was given to a man who had fathered thirteen children through surrogacy arrangements. Mr. Pascoe emphasized that judges were placed in inextricable situations and had, in this case, to either recognize custody for the thirteen children or have them placed in state care. In international surrogacy arrangements, the point of admission in the country was the final opportunity to prevent the effective implementation of a surrogacy arrangement. Therefore, it was generally too late for courts to dispute the legality of the arrangement. Finally, he stressed the importance of regulating surrogacy in order to ensure that child’s rights are protected. 

Ms. Laura Martinez-Mora gave an overview of the Hague Conference on Private International Law’s (HCCH) work in the field of parentage, including international surrogacy arrangements. Ms. Martinez-Mora explained the importance of legal parentage, as children derive many important rights from it. The HCCH was discussing the feasibility of developing a multilateral instrument in the area of legal parentage. The objective of the work was to ensure that the legal parentage established in one country could be recognized in other countries (i.e. that children have the same legal parents in different countries). The instrument should also protect the rights and welfare of children, parents and other parties involved in the conception of a child, in line with international human rights standard. She clarified that the HCCH project did not intend to unify practices around legal parentage, including surrogacy; and that States that are Members of the HCCH had many and varied positions in their internal laws on surrogacy.

Ms. Petra De Sutter firstly addressed surrogacy from a medical perspective, outlining the medical origins of surrogacy thirty years ago as a form of treatment rather than a commercial arrangement. Ms. De Sutter explained the cases of Belgium and the Netherlands, where there was no framework for surrogacy, as the practice was done on a non-commercial basis. In Belgium, the practice of surrogacy was organized by small clinics that required an in depth psychological and physical screening of all potential candidates. Seventy-five percent of candidates were not selected for the surrogacy procedure. In addition, Ms. De Sutter spoke of her report on surrogacy that was presented at the Parliamentary Assembly of the Council of Europe. She underlined that no agreement was reached on the conclusions due to the diverging opinions ranging from a complete ban to regulation of surrogacy. Ms. De Sutter then spoke of gamete donors and the issue of anonymity in respect to the rights of the child to identity and access to origins. She concluded by underling the paradox between the past acceptance of anonymity and commercialization of gametes with the requirement for a genetic link in the context of surrogacy.

Ms. Mia Dambach presented the current initiative of the International Social Service to develop Principles on the rights of the child and surrogacy. She underscored the need for a holistic multidisciplinary approach to surrogacy. Ms. Dambach outlined the twenty proactive Principles, and explained the participatory approach of the drafting process. Women’s rights experts were being consulted and regional consultations would be organized. She stressed the importance of seeing the child as an independent rights holder and raised concerns about limping parentage and statelessness, when dealing with surrogate born children differently. Ms. Dambach explained the need to ensure that a preliminary screening of intending parents was mandatory, and to have the best interests of the child at the heart of every decision of parentage and parental responsibility, including any possible transfer. Finally, Ms. Dambach emphasized the importance of international regulation of surrogacy based on human rights.

During the questions and answers, some participants voiced their opposition to surrogacy and enquired about the regulation of such a practice. Other participants asked about the general issue of anonymity of gamete donors and how this affected the right of children to identity and access to origins.

The panellists responded that gamete donor anonymity was unsustainable and that a change in approach would provide greater transparency, thus creating safeguards against the violation of the rights of the child.

In her closing remarks, the Special Rapporteur underlined the importance of addressing surrogacy and the sale of children as she stressed that the discussion could not wait.