DETAILED ANALYSIS OF THE VERONA PRINCIPLES FROM A FEMINIST PERSPECTIVE
Access to the synthesis HERE
Content
Principle 1: Human dignity
Principles 2 to 5: fundamental rights of the child
Principle 6: The best interests of the child
Principle 7: Surrogate consent
Principle 8: Consent of the intended parent(s)
Principle 9: Consent of persons providing human reproductive material
Principle 10: Legal parentage and parental responsibility
Principle 11: Protection of identity and access to origins
Principles 12 and 13 on notification, registration and certification of births and the avoidance of statelessness, respectively
Principle 14: Prevention and prohibition of the sale, exploitation and trafficking of childre
Principles 15 and 16 Financial rules
Principle 17: Respond to unexpected developments in surrogacy arrangements
Principle 17 seems to require States to put in place exceptional measures, should sudden and unexpected events occur in the context of a surrogacy situation
Principle 18: Cooperation between states, regions, and local authorities
Conclusion
In March 2021 the NGO International Social Service (ISS) published the Verona Principles. This text, which claims to protect the rights of children born through surrogate motherhood, is in fact a text that lists the rules to follow by states that want to open up to surrogacy.
Surrogate motherhood is a social practice that consists of recruiting a woman, for a fee or not, to carry a pregnancy or pregnancies (with or without her own oocytes), with the aim of handing over the resulting child or children to one or more persons, whom we will refer to as “commissioning parents”, who wish to be designated as their parent(s).
Before analysing the principles themselves,, here are some preliminary observations.
This formulation suggests that surrogacy is a fact, that it is accessible and in the minds of the public or politicians, this is equivalent to considering it accepted, even legal, and removes any desire to question it. However, most countries in the world do not accept it and hope to live in a world without it. The authors of this text ignore this situation and approach the question from a technocratic angle, without resituating it in the framework of human rights in the broad sense, which would reveal its inanity. But their approach immediately finds its limit: while they consider surrogacy as granted, they claim to frame it “so that the rights of the parties involved are protected”. Now, if surrogacy harms the interests and rights of the parties to such an extent that they should be protected, then this is a practice to be repressed and abolished, not improved, but this contradiction does not seem to challenge them too much.
The preamble says that “States have the obligation to uphold the rights of children born through surrogacy”. States, in accordance with international law, have the obligation to uphold the rights of ALL CHILDREN, not specifically those born through surrogacy. All children born are subjects of law, of human rights, regardless of race, ethnicity, gender or any other condition.
Why then create a specific text to encourage States to ensure the protection of the rights of those children? In the text, it is stated several times that children born through surrogacy should not be discriminated by the fact that they are born through surrogacy. However, this text establishes rules to protect those children[1], whereas there are already many international law texts that protect the rights of all children, without exception. If children’s rights are already protected, this text is meaningless. It seems obvious that it hides another goal: regulating the practice wordwide.
It should also be noted that in this text, as the protocol being prepared by the Hague Conference’s group of experts, the approach adopted amounts to confront the rights of the child against the rights of women with the following reasoning: In the name of the best interests of the child, surrogacy a practice which infringes rights of women, their individual freedom, health, dignity and, in general, the equality between women and men must be regulated,.
This text creates a conflict of rights which the drafters arbitrate in favour of one party to the detriment of the other. Conflicts of rights are never resolved in this way, but always in such a way that no one is harmed. Moreover, children’s rights and women’s rights are inseparable, they cannot be opposed, there can be no hierarchy between them. Women’s rights cannot be overshadowed to highlight children’s rights. This is even less true in the context of surrogacy, where the rights of the woman/ surrogate mother and the unborn child are intrinsically linked.
Principle 1: Human dignity
The notion of human dignity as we know it today, emerged in the aftermath of the Second World War, following the horrors committed by the Nazi regime.
Then the concept began to be included in international texts, such as the Declaration of Philadelphia of 10 May 1944 on the aims and purposes of the International Labour Organisation, the Universal Declaration of Human Rights of 1948, and the Covenants on Civil and Economic Rights of 1966.
It also appeared in national laws, notably in German law in 1949, and in the Italian Constitution of 1947.
It is an inalienable right, what means that it cannot be disposed of. Individuals cannot renounce human dignity. Human dignity is something that goes beyond the human being and inhabits them inexorably.
In this regard one example is very enlightening. The French very famous “dwarf-tossing” attraction, which used a physical handicap person and presented as such as a projectile, challenging the notion of human dignity and allowing it to be reaffirmed.
In 1995, the “Conseil d’Etat” (France’s highest administrative court) declared that this attraction violates human dignity, so agreed with the public authority that had previously banned the show[2]. The organiser of this show, a dwarf person, the subject of the “throw”, was quite willing and manifested his wish to continue the show.
Despite his consent, prevailed the right to respect human dignity. Moreover, to think that the dwarf’s person consent can cast a shadow over the principle of human dignity would lead us to give precedence to the benefit of a single individual over the humiliation of an entire category. The dwarf in question invoked the fact that this show provided him with a salary, and that he therefore derived an economic benefit from it. This seems to us to be an aggravating rather than a mitigating reason. Human dignity must be placed outside the realm of commerce.
The same reasoning can be applied to surrogacy. That practice undermines human dignity, reducing women to objects to be used by people, just for satisfying their desire to have a child. Women lose control over their own bodies, being deprived of all their rights. Only commissioning parents, and the contract doctors make the decisions. This is a clear violation of human dignity and, as the above example shows, the consent fact does not justify the human dignity violation. Dignity cannot be waived, even if it is desired.
In Europe, death penalty has been abolished, and considered a practice that violates human dignity. Would we accept that the state regulated the death penalty for prisoners who prefer to die rather than spend their lives in prison? The answer is no. Would we accept slavery if some people consented being submitted? No.
Surrogacy should apply the same reasoning. Despite the consent of the women in question, the practice itself is against human dignity, so must to be forbidden.
The United Nations High Commissioner for Refugees (UNHCR) defines human dignity as “the right of all human beings to be valued as individual and social subjects, with our particular characteristics, simply for being persons”. Adding that “Dignity also implies the right to be oneself and to feel fulfilled, which manifests itself in the possibility to choose a profession, to express one’s ideas and to respect others. Aspects such as humiliating treatment, discrimination in all its facets or inequality are opposed to dignity. The “Verona Principles” put Human Dignity forward in their first “principle”;
- But child dignity is nowhere defined. This first “principle” only refers to international texts that establish the practices contrary to public order and the limits in the treatment of children. Children at birth, regardless of their way of birth, benefit “de facto” from all the rights and protection related to children.
- What about the dignity of women? The “principle”, refers to human dignity of the child born of surrogacy, the human dignity of the biological mother is at no time mentioned, whereas surrogacy is intrinsically contrary to human dignity from the conception and prenatal period circumstances.
- Point 1.3 “Sale, trafficking and children exploitation is a human dignity violation, and deny the child independent rights holder”. Even admits that surrogacy contracts may entail dangers. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography defines, in its Article 2(a), the sale of children as: “any act or transaction whereby a child is delivered by one person or group of persons to another person or group of persons for remuneration or any other consideration”. The drafters bias to distinguish between bad practices to be prohibited, and good practices to be defined, is a purely mental view at odds with reality. In fact, the practice itself, whatever its modalities, consists in “create” a human being to satisfy the desire of some people to become parents: what is selling the production and filiation of a human being. Under these conditions, there is no point in distinguishing between bad and good practices.
- Children born by surrogacy are born by contract. We consider that the fact of being born by contract is contrary to human dignity.
Point 1.7 refers to the fact that the possibility of having recourse to surrogacy may create the false idea of the existence of a right to a child, but that right does not exist. Three points need to be made here:
– The drafters of the “principles” claim that there is no right to a child. This is true, but is this social construction of the right to a child, what creates the demand and therefore the surrogacy market. The commissioning parents have the feeling that they are exercising their rights when they order a child, in the same way as when they order and assemble a piece of furniture from Ikea.
– As soon as surrogacy is possible and accessible, the sense of entitlement to a child arises among potential parents. States then have no power over the individual feelings that emerge as soon as this possibility is open. It is illusory to deny the existence of a right to a child on the one hand, when access to purchase is being offered on the other.
– This desire is in neo-liberal thinking, as soon as it is achievable, becomes a right. But a desire, even a legitimate one, is not a right. It is even less so when its fulfilment obtained through the reproductive exploitation of women and their bodies. The limit to the satisfaction of a desire lies in violence, use, exploitation, violation of human dignity, etc. that it entails another human being.
The “Verona Principles” authors consider surrogacy to be a fait accompli and propose to list the rules that would make it possible to avoid its harmful consequences. Once the gestational process has been carried out, but it is already too late to act on the consequences of surrogacy, which only legitimises the practice, without resolving the underlying issue, by merely trying to patch it up. It is necessary to act at the root of the problem, to work for the abolition of surrogacy.
Principles 2 to 5: fundamental rights of the child
Principles 2 to 5 list the fundamental rights of the child as an independent individual, the right to health, non-discrimination etc. The “principles” simply list rights that are already sufficiently protected by the International Convention on the Rights of the Child.
Principle 2: “in cases requiring a determination of the best interests of the child after birth, the child’s rights should be independently represented by a legal guardian or other competent authority”. This implies that the commissioning parents are not actually the child’s parents, since children’s interests are generally represented by their parents. It is clear that the authors of the text encounter many difficulties in trying to reconcile the rights of children with the interests of clients (commissioning parents).
In Principle 5, ” Pre-surrogacy protections “, financial arrangements are mentioned. This means that commercial surrogacy is not excluded and is considered acceptable by the authors of this text.
Moreover, while this principle is intended to detail the “rules” of protection prior to surrogacy, the risks taken by the surrogate mother are not mentioned, nothing is said on this subject, only the clients, and at best, the child matter.
Principle 6: The best interests of the child
First of all, it should be noted that it is not in the child’s best interest to be treated like merchandise, to be bought and sold. It is not in the child’s best interest to be the object of a sale.
The United Nations Convention on the Rights of the Child (UNCRC) states that it is best for children not to be separated from their parents[3] . How can the best interests of the child be considered protected in the case of surrogacy then? The child is the subject of a contract and is manufactured for the purpose of separating him or her from the mother at the time of birth.
It should be mentioned that surrogacy and adoption operate according to antinomic principles. While adoption organises the transfer of filiation to adoptive parents for children who have already been born. Here the thing is to find them a family, since their biological parents have given up on bringing them up, not being able to take care of them. In those cases, it is the community that will take charge of them and entrust them to adoptive parents within a legal framework, while respecting the International Convention on the Rights of the Child[4] .
In surrogacy, a totally different thing occurred, commissioning parents, assisted or not by lawyers and agencies specialised in surrogacy, decide to create a child through a woman whom they will recruit and lead to carry a pregnancy, with the aim that she will separate from the child for their benefit at the time of birth. The transfer of parentage to the commissioning parents is always agreed before conception[5], by contract, which constitutes a practice considered equivalent to child trafficking according to the International Convention on the Rights of the Child.
Consequently, surrogacy organises the brutal separation of the child from the biological mother, the surrogate mother,[6] in contravention of the recommendation of the International Convention on the Rights of the Child, on the need not to separate children from their parents, whereas adoption merely remedies an existing separation situation.
Furthermore, there is a sentence in this principle that is not clear. It says that it is generally in the child’s interest to have at least one genetically related parent. This unsubstantiated statement is not supported in any way. But it is also a weak formulation that can be interpreted in two ways:
- The first interpretation, it is possible to donate both gametes (“donated” egg and “donated” sperm). In this case it is literally a purchase of a child, since a child is made with genetic material provided entirely by third parties and then transferred to the uterus of a surrogate mother, all of which is of course paid for.
- The second possible interpretation could be that, if it is considered that neither the surrogate mother nor her spouse are genetically related to the child (since they did not provide gametes), it would not be in the child’s interest to be considered as the parents.
Principle 7: Surrogate consent
This principle is the only one that refers to the function of surrogate mothers, not to reflect on their situation, but to articulate the constraints that must be imposed on them, whatever the consequences and with the advanced objective of satisfying the rights of the child, which are in fact hierarchically superior.
Principle 7.1: “The surrogate mother must be able to make independent and informed decisions without being exploited or coerced”.
The surrogate mother is asked to organise herself so that she is not exploited or coerced.
It is unacceptable to place the responsibility on the surrogate woman, who is the most vulnerable of all parties involved. It is not up to the victims of exploitation to protect themselves from exploitation.
Likewise, this text ignores the social, economic and cultural context in which the reproductive exploitation trade thrives. Those who promote this practice deny the material reality on which this industry is nourished, marked even more in the post-pandemic era by gender inequality, the feminization of poverty, the regression of women’s human rights, the rearmament of the patriarchy and the hegemony of capitalist neoliberalism.
The lack of options and opportunities for women, their exclusion from access to resources and spheres of power, the unemployment to which they are relegated, the lack of support for raising their own children, and assistance to their elders, the absence of public policies to improve their living conditions, female socialization towards the values of sacrifice, abnegation and dedication and the satisfaction of the desires of others, constitute the context that pushes women to put their reproductive bodies on the market. In this social framework, it is not possible to speak of consent and total freedom, without it being conditioned in some way.
In addition, there is another element to consider: the imbalance between the parties. In the opinion 110 of 10 April 2010 the National Consultative Ethics Committee for Life Sciences and Health states that “In all countries that have legalised surrogacy, it has been observed that the parents come from a higher social background than the gestational carrier”[7]
When there is such a great imbalance between the parties, there is no level playing field. This makes it impossible to speak of free and informed consent on the part of the pregnant woman. Of course, providing information is a necessary, but not sufficient, condition for legitimate consent to occur on the part of the surrogate mother.
Given the profound social and gender inequalities that exist, a woman with certain needs will accept the conditions of the contract and the damage to her physical and psychological health, even after having been informed of certain risks.
Principle 8: Consent of the intended parent(s)
This principle sets out the responsibilities of the commissioned parents and lists their obligations. It is striking, that there is no provision for parents to be made aware of the risks incurred by the surrogate mother. They are therefore expected to give their consent without full knowledge of the potential health risks to the surrogate mother. Surrogacy itself has a higher rate of obstetric complications such as: gestational diabetes, hypertensive disorder, pre-eclampsia, placenta previa, low birth weight and premature birth, post-partum haemorrhage. In addition, surrogate mothers are subjected to a series of medical procedures to meet the requirements of the commissioned parent(s), to the detriment of their health: heavy medication to maximise the success rate (for example through the use of antibiotics, hormones), side effects of hormonal stimulation, intrusive monitoring of the pregnancy (for instance unnecessary uterine ultrasound and amniocentesis), unnecessary caesarean deliveries, selective embryo reduction imposed or twin pregnancies[8] .
Once again, women are relegated to third place. The interests of the commissioning parents come first, then the interests of the child, then the interests of the woman involved in the practice. This is unacceptable. Women’s rights cannot be of lesser importance than the rights of a possible unborn child who has not even been conceived.
It is also important to note that in the last point of this principle it is stated that “The intended parents and the child should have appropriate opportunities to get to know the surrogate mother, her immediate family and her community in the interest of the child”. This is tantamount to recognising the importance of the bond that is created between the surrogate mother and the child. It is absurd to want to create a child expressly for the purpose of abruptly separating it from its biological mother, only to have it come to know her. Why create so much suffering in two human beings, the child and the surrogate mother, to satisfy the desires of one or two other people?
It is certainly not up to the state, and even less to the commissioning parents, to decide on the future relationship that the child will or will not have with this woman, his biological mother, who carried him for nine months.
However, in any case this rule makes life very difficult for everyone involved in the process, especially the surrogate mother, who is being asked to decide whether and how she will remain in contact with the child she has given birth to.
Principle 9: Consent of persons providing human reproductive material
This principle is enshrined in the consent of gamete providers, misleadingly referred to as gamete donors.
Under the terms of this text, there is no provision for informing gamete donors of the risks associated with oocyte donation or of the need to limit the number of oocytes retrieved.
Principle 10: Legal parentage and parental responsibility
The text provides for a reflection period for the mother, after the birth of the child, she would be entitled to a period of reflection to decide whether she wants to keep the child or not. However, if she does not renounce the right of filiation, it is stated that a court will decide on the basis of the best interests of the child. The mother who gives birth to the child and revokes her consent, or does not confirm it, to transfer parentage to the sponsoring parents, must thus have her right to keep the child assessed by a court.
It is therefore not a reflection period as such. There should be no need for a judge to rule on the right of the biological mother to transfer the parent-child relationship or not. Why grant her such a right if she cannot freely dispose of it?
Principle 11: Protection of identity and access to origins
Regarding minors, the document states that their human rights to know their origin and identity, to be cared for by their parents (usually by the male buyer, who usually provides his sperm, which is sufficient to designate him as the father) and to be protected in case of abandonment or problems of filiation and nationality must be respected. This is what different jurisdictions try to do when these cases occur and it is also what led Thailand, Nepal, Cambodia to ban full or partial access to surrogacy for foreigners since 2015.
Principles 12 and 13 on notification, registration and certification of births and the avoidance of statelessness, respectively.
Theses paragraphs essentially regulate the bureaucratic procedures that states are expected to put in place in order to secure a nationality for children born through surrogacy.
The reality is that in most countries this issue is now settled.
Principle 14: Prevention and prohibition of the sale, exploitation and trafficking of children
This principle is perhaps the clearest expression of the paradoxes behind the text. It shows how much difficulty the authors had in trying to demonstrate that surrogacy could not be equated with the sale of children.
The sale of children is characterised by three criteria in international law: payment, transfer and exchange. In the case of surrogacy, it is therefore a question of payment of the commissioned parents share in exchange for the baby and the filiation associated with it.
The authors state that “States should prohibit commercial surrogacy where it is not possible to reliably separate payment for gestational services, from the illicit payment for the transfer of the child”. Meaning that under certain conditions it would be possible to separate the two. However, the UN Special Rapporteur’s own 2018 report points out that buyers always pay for both, the delivery of the child and the transfer of parental and parentage rights to the child; that in the absence of such delivery, they would never enter into such agreements, nor pay the surrogate mother without getting the baby in return. Commissioning parents, do not hire a woman to get pregnant, watch her belly grow and then congratulate her on her baby. They sign a contract for the delivery of a baby, which implies that a woman will carry a pregnancy to term, whether in the commercial version of surrogacy or in the so-called altruistic version where payments are also exchanged to compensate all parties involved.
It is impossible to separate the transfer of the child from the payment. It is inconceivable that commissioning parents only pay for “gestational services”. They are paying to go home with a baby, and that cannot be argued with. Separating the payment and the transfer of the child is a pure legal fiction, a subterfuge, a staging to avoid that surrogacy is considered a criminal practice.
Principles 15 and 16 Financial rules
These principles organise financial matters and the role/status of intermediaries, thus the market.
Like in the article 14.11, these articles involve the regulation (legalisation) of intermediary agencies. These paragraphs provide a framework for the operation of child market players, intermediaries or any other service providers. We are at the height of liberalism: human beings bought and sold in the name of the desire of one or more individuals.
Principle 17: Respond to unexpected developments in surrogacy arrangements
Principle 17 seems to require States to put in place exceptional measures, should sudden and unexpected events occur in the context of a surrogacy situation.
Point 17.3, which states that the best interests of the child must be taken into account in the case of illegal practices, can be interpreted as encouraging the recognition of those who have bought the child in violation of the law (and of the “Verona Principles” themselves) as the child’s parents. Here again, we come across one of the aporias of surrogacy. This kind of reasoning can lead very far.
The result is the paradoxical situation we are witnessing even in France today. The commissioning parents violate the French law that prohibits surrogacy by going abroad to find a surrogate mother and then they return to France with their baby with impunity.
Principle 18: Cooperation between states, regions, and local authorities
This principle tries to establish rules so that states can cooperate, and conflict situations are minimised. It is rather obvious throughout the text that the drafters had to take into consideration that there are states in the world that prohibit this practice and are strongly opposed to it. Unable to hide this reality, these states have been mentioned by the drafters, in order to maintain the illusion that this text does not support the practice of surrogacy.
Point 18.3 states that allowing surrogacy should limit access to this practice to parents of intent from states allowing surrogacy, without specifying whether these states need to have clear legislation on the matter or whether it is sufficient for them to tolerate this practice.
Point 18.5, on the other hand, would require states to prohibit surrogacy agencies from advertising in states where the practice is prohibited, but not in countries where it is neither prohibited nor legal.
The combination of these two articles suggests that the idea behind this text is to promote the market for surrogacy. The authors have limited themselves to setting minimal limits, excluding only two cases: that nationals of countries where surrogacy is expressly forbidden cannot resort to surrogacy in a third country, and those agencies cannot promote their services in countries where surrogacy is forbidden.
It seems clear that such a configuration continues to benefit the surrogacy market, given that there are few countries in the world that expressly prohibit surrogacy.
Furthermore, point 18.5, if applied, would create a situation of objective discrimination. What is stated in the text is that States should impose on surrogation agencies, private law actors, not to accept clients from countries where surrogacy is prohibited. The surrogacy agency would have to refuse clients on the basis of their origin or place of residence. Such discrimination on the basis of origin is unexpected in a text that elaborates legal principles.
Whether one considers the activity of these agencies to be commercial or, wrongly, medical, discrimination cannot be advocated.
While it is true that agencies already discriminate, for example on the basis of client’s sexual orientation or marital status, it is inconceivable that such incitement to discrimination would come from the highest international organisations.
Once again, this last point demonstrates the incoherence, hypocrisy and absurdity of this text. In the spirit of wanting to “regulate” a practice that is contrary to the human dignity of women and children and their rights, a system of discrimination would be put in place.
Conclusion
In conclusion, this text, with its unreadable and incomprehensible sentences, is just another attempt to regulate surrogacy. Instead of addressing what this practice really is, knowing its reality, and pursuing its abolition, these principles follow the neoliberal trend that seems to guide the world today and, once again, penalize and despise women around the world.
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[1] International Convention on the Rights of the Child, 1989, now ratified by 196 States; Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 25 May 2000, now ratified by 177 States.
[2] https://www.legifrance.gouv.fr/ceta/id/CETATEXT000007877723/
[3] Art. 9 CRC: “States Parties shall ensure that the child shall not be separated from his or her parents against their will, unless the competent authorities decide, subject to judicial review and in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such a decision may be necessary in particular cases, for example where the parents abuse or neglect the child, or where they live separately and a decision needs to be made about the child’s place of residence.
[4] Art. 21 of the CRC: States Parties that grant and/or authorize adoption shall ensure that the best interests of the child are a primary consideration in such matters and shall (a) Ensure that the adoption of a child is authorized only by competent authorities who shall verify, in accordance with applicable law and procedures and on the basis of all reliable information available in the particular case, that the adoption is permissible in view of the child’s status in relation to his or her parents, relatives and legal guardians, and that, where appropriate, the persons concerned have given their informed consent to the adoption, after having obtained the necessary guidance; (b) Recognize that intercountry adoption may be considered as an alternative means of providing for the necessary care of the child if the child cannot be placed in a foster or adoptive family or cannot be adequately cared for in the country of origin; (c) Ensure that, in the case of intercountry adoption, the child is afforded safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in the case of intercountry adoption, the placement of the child does not result in improper financial gain to those responsible for the child; (e) Pursue the objectives of this article by entering into bilateral or multilateral arrangements or agreements, as appropriate, and endeavour within this framework to ensure that placements of children abroad are carried out by competent authorities or bodies.
[5] although in some jurisdictions there is a legal formality that regularises this transfer after the birth (post birth parental order),
[6] whether or not his genetic mother
[7] https://www.ccne-ethique.fr/sites/default/files/publications/avis_110.pdf
[8] The health risks of surrogacy are well documented by numerous studies: Donchin, Reproductive tourism; Deharo, Madanamoothoo, Is International Surrogacy the Lark’s Glimmer, 365-366; Igreja, Surrogacy: Challenges and Ambiguities, 9; Taye, John Dewey’s Ethics, 50; Simopoulou et al, Risks in Surrogacy; Barn, Lessons From Commercial Surrogacy.