It is worth paying attention to two initiatives that, under an alleged concern for the rights of children born through surrogacy, aim at regulating cross border surrogacy.
Feminist critique of the Verona Principles
The detailed analysis if the Verona Principles is available HERE
Surrogate motherhood is a social practice that consists of recruiting a woman, for a fee or not, to carry and give birth to a child (or several children) conceived or not with her own oocytes, with the aim of handing it over to one or several people, “commissioning parents”, who wish to be designated as the parents of this child.
Attention should be paid to two normative initiatives which, under the guise of protecting the rights of children born through surrogacy, have the effect of promoting international regulation of this practice.
- Hague Conference on Private International Law – HCCH.
Under the pretext of “harmonising” national laws concerning parentage in the context of surrogacy, the HCCH has been working since 2011 on a draft protocol that will fuel the worldwide legalisation of this practice, which the HCCH openly considers a globalised market[1] . - International non-governmental organisation ISS (International Social Service).
They published the “Verona Principles” in February 2021, with the aim, according to the preamble, of protecting the rights of children born through surrogacy[2]. In reality, it is a text that will have the effect of encouraging states to facilitate cross-border surrogacy.
Moreover, the name and the way in which these “Principles” are presented, make them sound like a great statement of human rights to an uninformed public.
With regard to this second initiative, a group of experts from the International Coalition for the Abolition of Surrogacy (CIAMS), which has studied those “Principles”, questions the approach, the recommendations presented, the purpose put forward and makes the following criticisms.
1. Support for the international reproductive exploitation industry
The drafters of these “Principles” claim to be absolved of any responsibility for the development of surrogacy in the opening statement of the text:
“The Principles do not imply approval of surrogacy” (preamble of the “Verona Principles”).
However, any denial of responsibility on the part of the ISS is inoperative since the text aims, in fact, to organise surrogacy worldwide on the pretext of protecting the interests of children born of this practice. As a result, the “Verona Principles” respond above all to the interests of the market and the clients, the commissioning parents.
2. Attempt to decriminalise surrogacy
The drafters of the “Verona Principles” faced a major difficulty in dealing with the concept of “sale of children”. The Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography in its Article 1 declare: “States Parties shall prohibit the sale of children, child prostitution and child pornography in accordance with the provisions of the present Protocol in its Article 2(a): “Sale of children shall mean any act or transaction whereby a child is transferred by one person or group of persons to another for remuneration or any other consideration”. Furthermore, Article 3(1) adds: “Each State Party shall take measures to ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether committed within or outside its borders, or whether committed individually or collectively” and, in its subparagraph (a) on the sale of children, refers to Article 2. Therefore, surrogacy reveals a direct relationship with the sale of children, a concept that, according to the UN rapporteur on the sale and sexual exploitation of children[3], is not equivalent, but can be assimilated to those of trafficking and smuggling. Consequently, in the “Verona Principles”, the authors will try to construct a legal fiction in order to clear the practice of any suspicion of sale of a child by hiding the real purpose of the contract, which is falsely presented as a service contract.
The text tries to show that the commissioning parents are not paying for the child but for the “gestational service” of the surrogate mother. But the purpose of the contract is to acquire a human being, treated as an object or a thing, and in no way to provide a service. Is not even conceivable that the commissioning parents would return home without the child. It is impossible to separate the payment from the transmission or transfer of the baby. Consequently, there is a sale of child, and this is a pure legal fiction that attempts to demonstrate that surrogacy does not necessarily lead to the sale of minors. However, surrogacy is comparable to the sale and trafficking of minors in all cases and whatever the model (commercial, altruistic, solidarity…), because the final product sought by the interested parties is the baby and the bond of filiation that accompanies it.
This fiction is such that it could be compared to a fraudulent manoeuvre designed to conceal the crime of sale and trafficking of children that stems from this practice, according to the definition of sale of children approved by the United Nations General Assembly on 25 May 2000: “any act or transaction whereby a child is delivered by any person or group of persons to another person or group of persons for remuneration or any other benefit”.
3. A strategy to confront women’s rights with children’s rights
In this text, as the protocol that the Hague Conference is preparing, children’s rights are opposed to women’s rights, as if the two of them were not complementary or as if there were some kind of hierarchy in between them.
From a feminist perspective, the first thing that is striking is that at no point in the text women’s rights are mentioned. Women (surrogate mothers) are only mentioned as parties to the surrogacy contract; as women, subjects of law, they do not exist.
Women’s rights cannot be overshadowed by the rights of children. Even less so in the context of surrogacy, where the rights of the surrogate mother and the unborn child are intrinsically linked. Indeed, from the very beginning, labour law sought to organise the protection of pregnancy, breastfeeding and maternity. And nowadays, gender equality policies presuppose the protection of women from pregnancy to the period following childbirth with a whole set of standards accepted in most countries of the world.
4. A low-cost conception of human dignity
For the drafters of the text, surrogacy, once regulated, is not considered any more an attack on the human dignity of children. But the thing is that no legal formalism can make disappear an attack on dignity. The right to human dignity is an inalienable right that applies without the need to seek consent. Surrogate motherhood, whether organised commercially or “altruistically”, therefore constitutes a violation of the human dignity of women and children, which it itself ratifies. The United Nations High Commissioner for Refugees (UNHCR), Spanish Committee defines human dignity as “the right of all human beings to be valued as individual and social subjects. Aspects such as humiliating treatment, discrimination in all its facets or inequality are opposed to dignity”[4] .
5. An important omission: the issue of the dignity of women contracted as surrogate mothers
The first “principle” of the text says that the human dignity of the child must be respected. However, nothing is said about respecting the human dignity of women, as surrogate mothers. Using them to carry out a pregnancy and give birth to a baby that will be given later to clients, is intrinsically contrary to their dignity.
6. The best interests of the child biased
Article 9 of the International Convention on the Rights of the Child[5], states that it is contrary to the best interests of the child to be separated from his or her parents and that States Parties shall ensure, as far as possible, that the child is not separated from his or her parents against their will.
The adoption system respects this provision, as the biological parents are who decide themselves, after birth, to separate from their child, who will be taken in charge by the public authorities. In the contrary, surrogacy is against this international norm, it is the practice itself that creates a situation where, before the child is even conceived, the decision to take the child away from its biological mother is already taken by contract, to the exclusive satisfaction of the commissioning parents.
The “Verona Principles” considerations, in regard to the best interests of the child, drafter’s clauses consider that the transfer of parentage between the biological mother and the commissioning parents should not be inserted in the surrogation contract before conception (P. 6.2) but must take place after birth. On the other hand, it does not seem to be a problem the fact that, physical separation of the child from the biological mother, is decided and organised even before the conception of the child. The desire to give precedence to legal formalism (transfer of filiation) over the factual situation (physical separation of the child from the biological mother) shows the great hypocrisy of this text, where Article 9 of the International Convention on the Rights of the Child is not respected.
7. The superficial approach to the notion of consent, an instrumentalisation of this concept
This text deals with the consent of the surrogate mother, the donor(s) of genetic material, and the commissioning parents. In all three cases, consent is not always truly free and informed, as it is supposed to be.
Surrogate mothers, in the vast majority of cases, they are in such vulnerable and precarious social, economic or familiar situations that they give their consent to be involved in surrogacy, without necessarily being aware of the physical and psychological risks that this practice may cause them. The structural, economic and social inequality between the commissioning parents and the surrogate mother, renders consent, whatever its modalities, inoperative and therefore null and void.
Oocyte donors, nothing is said about the risks associated with oocyte extraction. There is no provision to inform those women of the possible dangers, such as that it would be desirable to limit the number of extractions, which is generally advised.
Regarding the consent of the commissioning parents, nowhere it is written that they must, for example, be informed of the risks and dangers incurred by surrogate mothers. Nevertheless, numerous studies, now easily accessible, document and quantify the health risks for women and children in the context of surrogacy. Ignoring, minimising or hiding them is such a characteristic of a human exploitation practice of women and children.
Embryo transfer is carried out with the consent of the contracting parties and the mother, which transforms this act into a donation, since any person receiving cells, tissues, fluids and organs from another body implies that there are providers for them. A donation implies both the consent and acceptance of the recipient and the consent and renunciation of the donor(s), and this renunciation must be informed, voluntary, altruistic, free, and anonymous, and no remuneration or benefit or advantage can be received from the donation – when this occurs, it is called trafficking[1] nor any consideration for the donated embryo, much less its restitution as a baby after nine months of pregnancy and a delivery. Donating an embryo in a non-anonymous way and claiming to be refunded with a baby by the recipient – reduced to a “gestational carrier” and depriving her of all rights as a mother and of the consciousness of being a mother – is, to say the least, a perversion of all the bioethical principles that characterise the world model of transplantation.
[1] Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs. Joint Council of Europe/United Nations study, 2009
8. The social construction of the belief in the right to a child.
The right to a child does not exist. It is not stipulated in any international or national texts. However, as the drafters of the Verona Principles acknowledge, “the practice of surrogacy can create false expectations that adults have a right to a child, even with particular characteristics”. And they add that these expectations should be “sought to discourage”. Certainly, but the justification for the existence of surrogacy, which creates the demand and therefore the market, is this social construction of the right to a child. The Commissioning parents have the impression that they are exercising their rights through this practice. Consequently, as soon as surrogacy make possible and accessible this “method”, the feeling of the right to a child arises among the commissioning parents, and no one has the power to control these feelings.
Conclusion, the “Verona Principles” do not protect the human rights of women and do not prevent the human rights of children from being violated.
The “Principles” trivialise and disparage biological motherhood, ignoring the strong physical, psychological and social implications of pregnancy for women, and for the two-way bond established between the child and the biological mother. But at the same time, the existence and importance of this bond is recognised by the drafters themselves, in point 8.3 they say “The intended parents and the child shall have appropriate opportunities to get to know the surrogate mother, her immediate family and her community in the interests of the child”. It is one contradiction after other.
From women’s rights point of view, surrogate motherhood is morally unacceptable. It implies a pregnancy that is not desired by the woman who engages in it, that is usually imposed on her through family or social, even religious pressure, and above all through her vulnerability and economic insecurity. This pregnancy is not part of her personal life project, the only context in which motherhood can be chosen (or not) in complete freedom.
Many practices have been considered contrary to human dignity and therefore abolished, in the world, and in particular in the European Union. This is the case, for example, of the death penalty and slavery. States have considered them inhuman, contrary to human dignity. They left no place to consent. We would not accept today to condemn someone to death, or enslaving a person, simply because that person has, supposedly, given consent. So why accept surrogacy, an exploitative practice that violates the rights of women and children, in the name of consent that is, in most cases, questionable? The only possible solution is the universal abolition.
[1] “It is common knowledge that surrogacy has become a global market“, definition of the Filiation / Surrogacy project: https://www.hcch.net/fr/projects/legislative-projects/parentage-surrogacy
[2] Two terms define this practice: surrogate motherhood and surrogacy. Both are used interchangeably in this text.
[3] In 2018, the Special Rapporteur on the sale and sexual exploitation of children wrote a report on surrogacy in which she stated that surrogacy constitutes the sale of children: https://undocs.org/A/HRC/37/60
[4] https://eacnur.org/blog/derechos-humanos-articulo-1-tc_alt45664n_o_pstn_o_pst/#:~:text=La%20dignidad%20humana%20es%20el,simple%20hecho%20de%20ser%20personas.
[5] International Convention on the Rights of the Child: https://www.unicef.fr/sites/default/files/convention-des-droits-de-lenfant.pdf