The undersigned, feminist associations and other civil society organisations, as defenders of women’s and children’s human rights, consider that the two initiatives mentioned will facilitate and therefore encourage cross-border surrogacy, based on a misleading interpretation of the best interests of the child, trampling on women’s rights, for the sole benefit of those who have no shame in using this practice and therefore the market.
1. => Draft Protocol on parentage in the context of surrogacy (Hague Conference on Private International Law – HCCH)
A group of experts has been working for 8 years on a draft protocol which will be submitted to a vote of the Member States probably in 2023. Its objective is to facilitate the recognition between States of foreign judicial decisions on the legal parentage of children born from surrogacy. In its approach the expert group recognises that transnational surrogacy entails risks for the parties involved, commissioners (clients), surrogate mothers and children. However, disregarding all ethical considerations and the central issue of human rights, they drafted a protocol with two main focuses:
- Protect the commissioning or contracting parties by facilitating their access to parentage on the guise of the best interests of the child,
- Construct of transnational cooperation that imitates, by twisting it, the scheme adopted in the Convention of 29 May 1993 on the Protection of Children and Cooperation in respect of Intercountry Adoption so that surrogacy, which is equal to “sale of children”, would have the appearance of legality.
2. => Verona Principles published by the NGO International Social Service (ISS) in February 2021
This text was drafted as a guide for States and claims to defend the rights of children born through surrogacy, who are already protected by international conventions. Although it has no legal value, this text may nevertheless become a reference for legislators to organise surrogacy at national level.
States are reminded here that surrogacy is to be considered as:
- An attack on human dignity, commodifying women and children. Dignity is a fundamental right protected by international law which cannot suffer any exception.
- A form of violence against women, as being female, owing to their reproductive capacities, physical, economic and psychological violence, enforced with a sham of consent: the contract.
- A practice that undermines the principle of equality of human beings, and of equality between women and men, by creating a subservient category of women assigned to procreation for third parties.
- An attack on the dignity of children whose best interests are not to be bought and sold.
- A risk for surrogate mother’s children, in terms of their psychological, mental and emotional health, as they are confronted with child trafficking within their own family.
- A trend to create a right to a child instead of an established and recognised right to form a family.
- Finally, according to international instruments, surrogacy is, on the one hand, child smuggling and, on the other hand, trafficking in women for reproductive purposes.
For all these reasons, we therefore call on States to:
- Disapprove the HCCH protocol on “parentage in the context of surrogacy” when submit, in 2023, to the 91 member states of the Hague Conference on Private International Law.
- Ignore the Verona Principles as a guide to assist them in their legislative work.
- Improve their legislation to consider surrogacy as a crime of violence against women, within or outside their territory, based on Article 3 of the Istanbul Convention.
- Commit to include a feminist perspective (based on Article 6 of the Istanbul Convention) in the implementation and evaluation of the conventions they ratify, and to promote and implement gender equality policies recognising that certain types of violence disproportionately and exclusively affect women .
- Support the feminist proposal for an international convention on the abolition of surrogacy, proposed by ICASM (International Coalition on the Abolition of Surrogacy).
- Contribute to the inclusion of surrogacy as a form of violence against women, that can be qualified as trafficking, in national legislation and in international treaties, such as the Istanbul Convention.
- Address this type of crime that affects both children and women by strengthening transnational collaboration to end reproductive exploitation.
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