by Stoppt Leihmutterschaft – Austria – Felix

Surrogacy and international law

Opinion on the mandate and negotiations of the Expert and Working Group of the General Affairs and Policy Council of the Hague Conference on Private International Law (HCCH)

Background: From 2016-2022, an expert group of the HCCH met to examine the possibility of further regulating cross-border surrogacy in private international law through international law instruments. The Expert Group 2016-2022 pursued laudable goals. However, the result presented after 6 years shows that the approach to surrogacy is not appropriate: regulation at the cost of human rights violations must not be allowed. In 2023, a working group will be set up to further develop international instruments on “legal parenthood”, including surrogacy.
Demands:

1. we demand the termination of the mandate of the working group as far as it concerns legal regulation and not a ban on surrogacy
2. we demand respect for international legal standards and national bans on surrogacy (where they exist), and a strengthening of existing provisions on adoption as the best option to protect the best interests of the child.
3. We strongly oppose the overriding of national bans and the strengthening of the practice of surrogacy, which is demonstrably contrary to human rights, through private international law regulation.

We make these demands on the basis of the following findings and considerations:

1) Any form of surrogacy is incompatible with international law instruments, the principles of international law, and the very concept of universal human rights.

Violates the right to equality found in Article 1 of the UDHR (and other, binding, instruments)
Violates the states’ obligation to prevent the abduction, sale of, or trafficking of children for any purpose and in any form in Article 35 of the CRC.
Violation of children’s right to know and be cared for by their parents (Art. 7, 8 CRC), potentially violates children’s right to not be separated from their parents against their will (Art. 9 CRC).
Violates the prohibition of financial gain and disposal of a part of the human body (Article 21 Convention on Human Rights and Biomedicine).
The existing practice of surrogacy more often than not fits the definition of slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ (Article 1 United Nations Slavery Convention).
Notably, this applies to all forms of surrogacy, whether they be classified as “commercial” or “altruistic” or in whatever other way that merely masks the exploitative nature of the practice.
According to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, surrogacy is equivalent to the sale of children as the consent of the surrogate mother has been given before the birth of the child and even before its conception (Art. 4 c) (4)) and this consent has been induced by payment or compensation of any kind (Art. 4 c) (3)).
According to the Palermo Protocol and the 2011 Directive on the Prevention of Trafficking in Human Beings, surrogacy should be considered as human trafficking because the surrogate mother’s consent is obtained by way of deception, i.e. deception that the surrogate mother is not the mother of the newborn, that this child is not hers and that she is not selling it. (Art. 3 para. (b) in conjunction with para. (a) Palermo Protocol and Article 2, para. 4 in conjunction with para 1 of the Directive).

2) No need for additional legal instruments which would come at the price of increased human rights violations

Children born under whatever circumstances have the right to legal parenthood being established.
The ECHR repeatedly held that states must afford a way to establish legal parentage to a child born under a surrogacy arrangement. The common (and sufficient) legal means to do so is adoption.
ECHR repeatedly held that CoE member states are under no obligation to recognize a foreign birth certificate, in particular when its contents are in violation of the established domestic law definition of motherhood/fatherhood.
There is neither a need for, nor is there anything to be gained from, establishing further rules on recognizing legal parenthood as they would inevitably lead to human rights violations (see point 1 above).[1]

3) The practice of surrogacy is harmful, the practice of adoption is in the best interest of the child

In their essence, surrogacy and adoption are distinct practices that reflect two fundamentally different approaches to the rights of the child.
Adoption is linked to the specific needs of the already-born child, and surrogacy is focused on adult desires with regard to a non-existing child.
While surrogacy involves deliberate termination of existing family relationships (which is, by and of itself, a violation of human rights, see above), adoption is aimed at placing a de facto abandoned child into a family. Only the latter can be said to be in the best interests of the child.

4) Acknowledgment of the legal ‘chaos’ created by surrogacy

The HCCH working group is clearly states that many complications arise from parental rights being claimed on different genetic, biological, or legal bases, leading to chaos and unresolvable, competing claims both in national and international situations.
The working group’s mandate is noble in theory as it seeks to reduce chaos. However, the instruments considered are not suitable to actually bring about such a reduction of chaos.

5) Regulation will not reduce, but rather increase human rights violations

The ambiguity of the working group’s final report 2022 clearly shows that no “silver bullet” solution is to be had.
Any regulation which allows the practice of surrogacy to covertly continue will only increase “reproductive tourism” and the exploitation of women and trafficking in children in poor countries.
The seemingly noble attempt to reduce legal uncertainty will increase legal uncertainty as it clearly has the potential to render meaningless national bans on surrogacy and effectively serve to legalize such harmful practice via the ‘back door’ of international private law.

6) Call for Introduction of penalties for enablers and facilitators of the practice

The noble aim must be addressed in a different way. International law should seek to increase and enforce the protection of vulnerable women and children.
Rather than seeking to make international surrogacy arrangements easier to handle, the gross violations of human rights resulting from such practice should drive a strict prohibition and heavy fines on those partaking in international surrogacy agreements, including mediation agencies, healthcare institutions, lawyers, and medical staff.
By specifically targeting agents of the industry, the culprits who manipulate situations of emotional, social, and economic vulnerability would be penalized and thereby, the root of exploitation would be tackled to secure the best interest of the child, freedom and safety of women, children, and families.

Note: This list is by no means intended to be exhaustive in listing known legal complications around international surrogacy arrangements. Rather, the aim is to start from a human rights point of view and addressing the core issues any regulation at the level of international private law would inevitably bring about.

[1] The expert group explicitly noted that “legal parentage in the context of intercountry adoptions is already dealt with under the scope of the Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption (1993 Intercountry Adoption Convention).” It is quite telling that the expert group also stated: “…the feasibility for a Convention to also apply to legal parentage established by domestic adoption will depend in part on overcoming challenges as to what rules should apply particularly without undermining the 1993 Intercountry Adoption Convention. If a Convention did not apply to legal parentage established as a result of domestic adoption, its overall feasibility could be affected.”