Despite the human rights violations involved in surrogacy, the decision to persevere for more than a decade in creating an international instrument to organise this practice is worrying.
We condemn the decision to follow this path, instead of really fighting for the rights of children and women who pay a high price for this misogynistic practice.
To counter this approach please sign this petition to be sent to the HCCH member states
The HCCH, by focusing on filiation, exempts itself from questioning the practice as a whole.
Let us recall that the surrogacy market offers two intrinsically linked products: a child and the transfer of the surrogate mother’s filiation to the persons who wish to be designated as the parents of this newborn, parties to the surrogacy contract.
By focusing solely on filiation, the HCCH adopts the logic of the fait accompli: organising a practice that is carried out without ever being questioned. This approach is tantamount to managing the consequences solely from the angle of the difficulties that clients sometimes encounter during the transfer of filiation. In doing so, HCCH avoids questioning surrogacy as a whole, working on its causes, on what underlies it; inequalities, the mandate to reproduce, the instrumentalisation of women, the commodification of children…. The need to eradicate the practice thus seems to be the only approach compatible with human rights. Surrogacy is, in fact, a sale of newborns, violence against women, a violation of the dignity and rights of the women and children who undergo it, and therefore a clear case of violation of human rights. The text is only concerned with facilitating the life of the clients (“intended parents”) by facilitating their access to this product: filiation, without falling into irregularities or criminally reprehensible actions.
The strictly legal point of view adopted by the HCCH is biased, even undemocratic.
The issue of “filiation in the context of surrogacy” is approached solely from a legal point of view, in the hands of experts recruited mainly by the legal profession, which presents an extremely restrictive approach; ethical issues and feminist perspectives are totally absent.
It is striking that, during the drafting of the text, the agencies that market this practice were consulted, as well as doctors and lawyers who work for these agencies, or who have a direct interest in this practice. All of them have a vested interest in the further development of surrogacy. But at no point in the process were associations of children born from gamete donation, surrogate mothers, experts who have researched the practice, or feminist organisations consulted.
The working papers consulted emphasise that efforts should be made not so much to harmonise the standards of different states as to build bridges between different legal systems on the basis of internationally recognised common principles (such as those provided for in the International Convention on the Rights of the Child). Ultimately, however, what is sought is the harmonisation of standards, which will inevitably lead to the regulation of the practice of surrogacy, or at least its social legitimisation.
HCCH in the service of the globalised market of reproductive exploitation.
The HCCH and the work of the expert group it has appointed are acutely aware of the injustices, hardships and human rights abuses that activity-based management generates. They recognise that surrogacy “reproductive tourism” has developed and become a manifestation of today’s globalisation. The survey carried out in the Member States and beyond has brought to light scandalous situations: abandonment of children, who end up in orphanages, trafficking?
We are surprised that, after having recognised surrogacy as a global trade, after having defined some possible dangers arising from this practice, and after having recognised that it is contrary to the public order of some States, they persist and put all their efforts into regulating an international legal filiation, instead of reflecting and working for the international and national abolition of the practice of surrogacy.
HCCH undermines children’s rights
Such an important and protected element, both internationally and nationally by most States, as the best interests of the child, is ignored and confused with the commercial interests of surrogacy agencies and clients, obsessed by the desire to obtain a child at any price, under the false belief of the right to a child.
We cannot forget that there is no right to a child, but the right of children to have a family. From the moment that the gestation of a child in the womb of a mother other than the one who is going to raise it, its delivery and its transfer from the mother to the clients, whether or not in exchange for financial remuneration, is contracted, the fundamental rights of both the future child and the pregnant mother are violated.
HCCH undermines women’s rights
In the work of this working group of officials and/or lawyers, women’s human rights and the violation resulting from the practice of surrogacy are not only relegated to the background, but not even considered. The point of view is that of the clients, whom HCCH calls “intended parents”.
This bias is also reflected in the Verona Principles, a similar work by lawyers who also focus on the transfer of parentage. Women’s rights are circumvented and the surrogate mother is not even considered as a subject of rights, only mentioned as part of the agreement.
The fact that women accept, for reasons of economic and social vulnerability, to renounce all their rights for the duration of the process; to submit to multiple, very often abusive obligations, to risk their health, even their life, is never mentioned or questioned. Only the wishes of the clients and the market count.
HCCH is complicit in the reproductive exploitation of women
Another problem that the text does not take into account is the growing economic and social inequality worldwide. Cross-border demand for children generally comes from developed Western countries, some of which have banned surrogacy on their territory in the name of respect for human dignity. The supply is concentrated in less economically favoured countries. This economic asymmetry between countries only encourages the reproductive exploitation of poor women in developing countries.
In addition to cross-border surrogacy, there is the domestic market with a booming surrogacy industry, such as in the United States, which is not exactly at the forefront of social, medical and reproductive rights, Nigeria and South Africa. The more affluent social classes use socially, culturally and economically vulnerable women to obtain a baby. Therefore, expectant mothers are not on an equal footing with clients.
The HCCH is complicit in the trafficking of women and children.
In addressing the issue, the work of the HCCH has also addressed the issue of contract, seeking to define surrogacy. Ultimately, much of the process will be interpreted as an international regulation of surrogacy and not only of parentage.
However, with cross-border surrogacy we are dealing with a case of trafficking in women and children, since in exchange for a sum of money (either a consideration or the allocation of a reasonable gestational fee) one or more persons will obtain a newborn child, its parentage, after the surrogate mother has relinquished it.
It is not that the lack of regulation of this practice leads to abuses and human trafficking situations. It is that the practice itself is a violation of human rights. The creation of a multilateral convention between states on the filiation of children born through surrogacy will not only lead to situations contrary to human rights, but will create a false appearance of legality, inviting the practice.
Filiation is only a palliative to the broader problem of surrogacy. It is very dangerous that a body such as the Hague Conference, the regulator and harmoniser of private international law, not only does not directly condemn the practice, but with all the efforts to regulate filiation, they cover up the practice.
The Hague Conference is aware of the difficulty of creating this multilateral agreement because of the different approaches that exist in the various States, in particular as regards the recognition of parentage, and the cost for some of them of changing this approach and, for example, recognising parentage situations created by mechanisms contrary to public policy in the domestic law of each State.
They are concerned about the vulnerable situation of children, surrogate mothers and intended parents, and consider that a multilateral convention establishing bridges on the recognition of children’s filiation in cases of cross-border surrogacy and facilitating an area of cooperation between States would help to avoid possible fraud.
This is not our opinion,
We know that regulation has never prevented either trafficking or smuggling. On the contrary, it legitimises the practice, contributes to developing demand and attracts the most blatant exploitation practices.
We know that as soon as the protocol is published, states will refer to it, the public will interpret it as legitimising and encouraging the practice.
We also know that this text will be interpreted more generally as a blank cheque for the exploitation of others, not only with surrogacy, but with any other practice as long as there is contractualisation and a sham of consent.