The Hague Conference on Private International Law (HCCH) is working to define surrogacy in an international instrument. This is a real blank cheque to the globalized surrogacy trade in the mostly poor countries of the world, and we must urgently oppose it.
The Hague Conference on Private International Law (HCCH) is an intergovernmental organisation with 86 Members (85 States and the European Union). Its statutory mission is to work for the “progressive unification of the rules of private international law” mainly through international conventions which are legally binding on the States that have ratified them.
In 2015, the HCCH mandated an Expert Group to work on the issue of parentage, including parentage in the context of international surrogacy arrangements. In March 2020, the mandate of the Expert Group was renewed for two years, with the purpose to develop both:
- a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
- a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of international surrogacy arrangements.
The mission of the Expert Group was restricted to parentage. But their work shows serious deviations, as the expert group has chosen to wilfully extend their mission to all stages of the surrogacy process including choice of surrogate mother, qualification of commissioning parents, contracts, consent, intermediaries, and financial aspects. This despite that surrogacy arrangements are illegal in most countries of the world.
The expert group therefore exceeded the scope of its mandate. If this draft protocol were to be accepted, it would mean that the institution of the HCCH had lent itself to private and commercial interests. Indeed, at least 3 of the “experts” appointed are in a conflict of interest being professionally involved in the surrogacy industry
In attempting to develop a private international law instrument on surrogacy, the HCCH is leaving its own admitted area. Surrogacy motherhood is not a matter of private law. It is a violation of women’s and children’s rights as stated in the CEDAW and the Convention of the Rights of the Child. The HCCH has no jurisdiction to violate the rights of persons.
The UN Special Rapporteur has recognised surrogacy arrangements as the sale of children as defined “in the Additional Protocol to the Convention on the Rights of the Child.” The European Parliament has condemned the practice of surrogacy “which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity”. Furthermore, the European Parliament considers “that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments ” States are obliged to respect ratified conventions on human rights. The basic line in rights agreements is that no human being shall ever be used as a means for others to fulfil their needs or desires.
Women’s and human rights organisations from around the world are now calling on the 86 Member of the HCCH to end the mandate of the Expert Group and the “Parentage/Surrogacy Project“, and to work towards the abolition of reproductive exploitation of women and of all forms of trafficking and trade in children.
The undersigning organisations and individuals support the draft International Convention for the Abolition of Surrogacy : http://abolition-ms.org/en/news/draft-international-convention-for-the-abolition-of-surrogacy/ which has been proposed by ICASM, International Coalition for the Abolition of surrogate motherhood, and sent to the HCCH.