Despite the human rights violations that surrogacy entails, the decision to persist for more than a decade in drafting an international instrument to regulate the practice is worrying.
We condemn the decision to continue down this path instead of genuinely fighting for the rights of children and women who pay a high price for this misogynistic practice.
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By focusing on parentage, the HCCH is failing to examine the practice as a whole
It should be remembered that the surrogacy market offers two inextricably linked products: a child and the transfer of the surrogate mother’s parentage to the people who wish to be designated as the parents of that newborn child, the parties to the surrogacy contract.
By focusing on parentage alone, the HCCH adopts the logic of the fait accompli: organising a practice because it is practised, without ever questioning it. This approach is tantamount to managing the consequences of the difficulties that clients sometimes encounter when transferring parentage. In this way, the HCCH avoids questioning surrogacy as a whole, working on the causes, on what underpins it: inequalities, the imperative to reproduce, the instrumentalisation of women, the commodification of children, etc. The need to eradicate the practice would then seem to be the only approach compatible with human rights. In reality, surrogacy is the sale of newborn babies, violence against women, 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 making life easier for clients (“intended parents”) by facilitating their access to this product: parentage, without falling into irregularities or criminal acts.
The strictly legal approach of the HCCH is biased and even anti-democratic
The issue of “parentage in the context of surrogacy” is approached solely from a legal point of view, in the hands of experts recruited mainly from the legal profession, which is an extremely restrictive approach. Ethical issues and feminist perspectives are completely absent.
It is striking that the agencies that market this practice were consulted during the drafting of the text, as well as doctors and lawyers who work for these agencies or who have a direct interest in this practice. They were all in favour of the development of surrogacy out of self-interest. But at no stage in the process were the associations of children born from gamete donation, surrogate mothers, researchers who have studied the practice, or feminist organisations consulted.
The working documents available on the HCCH website emphasise that efforts should be made not so much to harmonise the rules of different states as to build bridges between different legal systems on the basis of internationally recognised common principles (such as those set out in the International Convention on the Rights of the Child). Ultimately, however, the aim is to harmonise standards, which will inevitably lead to the regulation of the practice of surrogacy, or at least to its social legitimisation.
The HCCH at the service of the globalised reproductive exploitation market.
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.
The HCCH and the work of the group of experts it has appointed are fully aware of the injustices, difficulties and human rights violations caused by surrogacy. They recognise that the “reproductive tourism” of surrogacy has developed and become a manifestation of today’s globalisation. The survey in the Member States and beyond has brought to light scandalous situations: abandonment of children who end up in orphanages, trafficking, and so on.
We are surprised that, having recognised surrogacy as a global trade, having identified some of the potential dangers of this practice, and having recognised that it is contrary to the public order of certain States, they persist and put all their efforts into regulating international legal paternity, instead of reflecting and working towards the international and national abolition of this practice.
HCCH undermines children’s rights
An element as important and protected by most States, both internationally and nationally, as the best interests of the child is ignored and confused with the commercial interests of surrogacy agencies and clients, driven by the desire to obtain a child at any cost, under the false belief of the right to a child.
We must not forget that there is no right to a child, only the right of children to have a family. As soon as there is a contract that organises the gestation of a child in the womb of a mother other than the one who will raise it, its birth and its transfer from the surrogate mother to the clients, with or without financial compensation, it is clear that the fundamental rights of both the future child and the surrogate mother are violated.
HCCH undermines women’s rights
In the work of this group of experts mandated by the HCCH from 2015 to 2022, made up of civil servants and/or lawyers, women’s human rights and the violations resulting from the practice of surrogacy are not only relegated to the background, but are not even taken into account. The point of view is that of the clients, whom the HCCH calls ‘intended parents’ a word invented by the surrogacy industry.
This bias is also found in the Verona Principles, 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, , she is only mentioned as part of the agreement.
The fact that women, for reasons of economic and social vulnerability, agree to give up all their rights for the duration of the process, to submit to multiple and very often abusive obligations, to risk their health and even their lives, is never mentioned or questioned. All that counts are the commissioning parents and the market.
HCCH is complicit in the reproductive exploitation of women
Another problem that the text fails to take into account is the growing economic and social inequality in the world. The transnational 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. Demand is directed towards less economically advantaged countries in order to have more surrogate mother candidates who can be exploited more easily and at lower cost. This economic asymmetry between countries only encourages the reproductive exploitation of poor women in developing countries and women from less privileged backgrounds in developed countries.
“The resources of the human body are more available and affordable in low-income countries, where poor and vulnerable populations “are both available in large numbers and perceived to be more willing than citizens of wealthier countries to risk their personal health for minimal financial reward [1]”.
In addition to cross-border surrogacy, there are domestic surrogacy markets with a booming surrogacy industry, such as the United States, a country not exactly at the forefront of social, medical and reproductive rights, Nigeria or South Africa. In these countries, the wealthiest sections of society are using women who are socially, culturally and economically vulnerable. Surrogates are never on an equal footing with the commissioning people . Under these conditions, surrogacy contracts should be treated as unfair contracts. A clause in a contract is said to be “leonine” when only one of the parties bears the costs while the other party receives all the benefits, which is clearly the case in surrogacy.
The HCCH is complicit in the trafficking of women and children.
The work of the HCCH has also addressed the question of the contract, the genetic link, the definition of maternity, surrogacy and the different parties to the process, in short, a large part of the surrogacy process, which will be interpreted as an international regulation of surrogacy and not just of parentage.
Surrogacy is a case of trafficking in women and children because women are recruited as surrogates on the basis of a triple lie: that they are not the mother of the child, that the child is not theirs and that they are not selling it (see the definition of trafficking in the Palermo Protocol [2]). despite the exchange of a sum of money (whether in exchange for a consideration or for the payment of reasonable pregnancy expenses) by which one or more persons obtains a newborn child and its parentage, after renouncing the surrogate mother.
Under international instruments, this practice can be described as trafficking in human beings and the sale of children, although regulation would not remove its criminal nature. A multilateral convention between States on the paternity of children born through surrogate motherhood would not only lead to situations in violation of human rights, but would also create a false appearance of legality, thus inviting the practice.
The issue of parentage is only one aspect of the wider problem of surrogacy. It is very dangerous for a body such as the Hague Conference, in its role as a regulator of private international law, not only not to condemn the practice directly, but to cover it up by making every effort to regulate it.
Conclusion
The Hague Conference is aware of the difficulty of reaching this multilateral agreement because of the different approaches to the recognition of parentage in the various States, the cost which it would entail for some of them to change this approach and the fundamental impossibility of recognising these situations of parentage which are considered contrary to public policy under their domestic law.
It expresses its concern at the vulnerability of children, surrogate mothers and prospective parents and considers that a multilateral convention which would provide a bridge for the recognition of parentage in cases of cross-border surrogacy and facilitate an area of cooperation between States would make it possible to avoid any possible fraud.
This is not our position,
We know that regulation has never prevented trafficking or smuggling. On the contrary, it legitimises the practice, helps to develop demand and leads to the most shameless exploitation;
We know that as soon as this financial instrument is published, Member States will see it as a green light to organise surrogacy on their territory, thereby relieving themselves of their political responsibility towards their citizens; 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 in surrogacy but in any other practice where there is contractualisation and a sham of consent.
[1] https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1471-8847.2010.00282.x [2] https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons