The Hague Conference on private international law has been working on the issue of surrogacy since 2001.
Although aware of the harms of surrogacy, which she describes as a globalized market, she perseveres in an approach that, in the long term, will socially legitimize its practice, reducing in the eyes of public opinion women to gestational devices and children to consumer products.
In its approach limited to legal aspects only, it deliberately takes the point of view of clients, described as “intended parents”, questions only market players, focuses exclusively on the consequences of a humanly harmful practice without ever addressing the causes: the advent of a globalized system of exploitation of women and children that should be eradicated and not organized at the risk of becoming accomplices.
This presentation of the approach of the Hague Conference on Private International Law (HCCH) is divided into two parts, the first one reviews the history of the work carried out and decisions taken by this international institution, which has 90 Member States (+ the European Union), and the second one gives details of the draft protocol which should be finalised in March 2023 by the group of experts responsible for drafting it.
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History
In 2001, the Hague Conference on Private International Law (HCCH) expressed alarm at the development of cross-border surrogacy since 2001.
In a series of informal consultations for its future programme of work, on the situation of children and in particular the recognition of parent-child relations, the issue of surrogacy was suggested as a possible future area of work for the Hague Conference[1]. In 2010, between 7 and 9 April, the meeting of the General Affairs and Political Council took note of the surrogate boom and adopted a number of decisions on the subject: invited the Permanent Bureau of the Hague Conference to prepare a brief preliminary note on the issue for the 2011 Council; recognized the complex issues of private international law and child protection arising from cross-border surrogacy agreements; noted that the impact of surrogacy cases on the 1993 Hague Convention on Intercountry Adoption should be addressed at the next Special Commission on the Practical Operation of that Convention; and finally agreed that the issue should be considered by the Permanent Bureau of the Hague Conference[2].
In view of the increasing number of cases of surrogacy at international level, the ultimate aim of the Hague work is not to combat this practice, but to prepare a document that will serve as a basis for a future international convention on surrogacy conventions.
In 2011, in a first report the HCCH qualifies surrogacy “as a global trade”
In 2011, the Permanent Bureau of the Hague Conference prepared a paper on private international law issues relating to the status of children, including issues relating to surrogacy agreements, for consideration at the annual meeting of the Council[3].
In this document, the Hague Conference recognizes that surrogacy is a global trade[4] that benefits from the difference in legal treatment between countries, as well as the advance of the media, the development and possibilities of the Internet, the propaganda of surrogacy clinics, the development of trade and the improvement of means of transport, that facilitates travel and communication.
The main problems identified are those encountered by clients, called “intended parents”, for the recognition of legal filiation in their favour or during the transfer of the child to their country of residence or with the appearance of possible disputes at the handover of the child. The protection of vulnerable persons is also mentioned as a concern to be taken into account, but in a much more vague and underdeveloped way Are considered vulnerable persons, children born of surrogacy who could be subject to human trafficking and even customers, sometimes harmed by erroneous information, unreliable agencies or agencies engaged in criminal proceedings related to the recognition of birth certificates of children born as a result of surrogacy contracts.
The report also recognizes that women who engage as surrogate mothers do so in conditions of poverty, and that there is a risk that they will be forced and coerced, even by their own families.
Finally, he stressed that in order to create international regulations in this area, extensive channels of communication between States were necessary and cited some examples of the content of this future document (rules on the mutual recognition of judgments, on the applicable law, on the taking into account of other decisions, among others).
In 2012, a new report called for an international instrument along the lines of the Hague Convention on the Protection of the Rights of the Child and Intercountry Adoption.
The first report was submitted to the General and Political Affairs Council of the HCCH at its meeting on 5-7 April 2011. He invited the Permanent Bureau to intensify its work on the issue with a view to developing a global consensus. He urged them to consult with experts in order to submit a new draft document that was submitted at the 2012 Council. The 2012 report[5] insists, like the previous document, that surrogacy is a global phenomenon. It provides an overview of the different ways in which States have dealt with the issue, as well as some ideas for an international instrument on surrogacy that could be modelled on the Hague Convention on the Protection of the Rights of the Child and Intercountry Adoption. It stresses the need to establish a space for cooperation between States (private judicial, administrative and international law) and the need to protect the identity of children and the rights of those involved. It recognizes that the attribution of the legal filiation of children born by surrogacy to “intended parents” may conflict with the public policy of some States, but that regardless of this, a hypothetical multilateral norm should make it possible not to leave children without parents or stateless persons[6].
In 2013, it drew up an inventory of legislation by interviewing its Member States and the actors of the surrogacy market.
Following this report, the Council on General Affairs and Policy of the Conference, at its meeting from 17 to 20 April 2012, requested the Permanent Bureau to continue its work on the regulation of filiation, and to prepare a questionnaire in order to obtain more detailed information on the scope and nature of private international law issues related to surrogacy, the issue of parentage and the approaches to be adopted, and urged the Permanent Bureau to present its results to the 2014 Council[7]. Four questionnaires were developed during 2013, addressed respectively to the Member States of the Hague Conference and other interested States, legal professionals, health professionals and surrogacy agencies. On the basis of this consultation, the Permanent Bureau produced two documents analysing and comparing the positions of different States on the issue, as well as the relevance and feasibility for the HCCH to continue working on this issue, and identifying the recommended next steps for discussion.
In summary, the conclusions reached by the Permanent Bureau in both documents, in the field of filiation, note that the internal laws of States have been influenced by social, scientific and demographic changes. On the one hand, there has been a shift from taking into account the marital status of parents in determining their obligations towards their children, to indifference to whether the parents are married or not, and thus to the consideration of all equal children, regardless of their filiation. On the other hand, the paper develops the consideration that genetic parents are not the only parents a child can have, defining as “parents of desire” those who consent to paternity although they do not provide their genetic load. But this second consideration, the study notes, has not been accepted in the same way by all states, which explains why many of them have not made progress at the legislative level by passing a law. On the other hand, the documents insist that efforts should not be so much about harmonizing the rules of different States as about building bridges between different legal systems, on the basis of common internationally recognized principles (such as those provided for in the International Convention on the Rights of the Child).
On the other hand, according to the documents, no work has been done at the international level to unify the rules on legal filiation in the field of private international law, nor to establish cross-border cooperation in this field. It also recalls that conflicts between States arise because of the differences between them in the determination of the relationship of filiation in cases where subjects from several States are involved, so that, depending on the case, recourse is had to conflict of laws, taking into account the applicable rules, or to the recognition of foreign documents (case law).
The study also raises the question of the relevance and feasibility of continuing work on filiation in the field of surrogacy (Prel. Doc. n° 3 B of March 2014). The Hague Conference decides that the work must continue, on the basis of the views expressed by the States and the various groups consulted and, they say, above all to safeguard the rights of children and other parties concerned, to ensure their legal certainty and to protect their rights and well-being.
Regarding feasibility, the question of whether it would be possible to reach a multilateral agreement (Prel. Doc. No. 3 C of March 2014).” The reports, after analysing the responses to the consultation, raise many doubts or problems that could arise during the formulation of the agreement. They mainly concern the binding or non-binding scope of the future agreement, the guarantees to be adopted, the advisability or otherwise of a convention along the lines of the 1993 Hague Convention, problems of public policy or the cost for States to change their approach to the recognition of filiation in international situations[8].
Finally, these two documents set out future actions to be taken to continue the work initiated by the Hague Conference, including the establishment of a group of experts to explore in depth the uncertainties surrounding the feasibility of a binding multilateral instrument in this area[9]. The General Affairs and Policy Council discussed the issue at its meeting from 8 to 10 April 2014 and concluded that the Permanent Bureau should continue to investigate and gather information on the feasibility of a multilateral agreement.
In 2015, the HCCH decided to mandate an expert group to study the feasibility of the future multilateral agreement on surrogacy.
In February 2015, the Permanent Bureau produced a new document (Prel. Doc. n° 3 A of February 2015) developing the precedents and entitled The filiation/substitution project: an update note. This document refers to the work carried out by the Committee on the Rights of the Child on filiation in relation to surrogacy in previous years, and to the impact on States of the latest decisions of the European Court of Human Rights on the issue. It also indicates the establishment of a future group of experts to examine the issue in depth. And, in its annex II, it lists the types of human rights violations that have been observed as a result of surrogacy agreements : the abandonment of children; the risk of trafficking in children; the right of children to know their biological origins; concern about the provision of consent by the surrogate mother; the detection of problems with intermediate agents.
The Council, at its meeting in March 2015, set the guidelines for the work of the future group of experts, whose role will be to study the feasibility of the future multilateral agreement. As a result, in January 2016, the Permanent Bureau submitted an information note on the project “Filiation/Maternity for others” to the attention of the group of experts. This document indicates as objectives, for the group of experts, the need to identify the problem areas, the points necessary for common solutions, the preliminary data on the future multilateral instrument, to identify the challenges of the future agreement and to discuss them.
In 2016, the expert group reports on its work and highlights the great complexity of the subject. His mandate will thus be renewed from year to year until 2023, when his work should be completed.
In February 2016, the expert group presented its first report on the subject[10], stressing that due to the complexity of the issue, it has not been possible to reach definitive conclusions, and that the work started should be continued with a focus on the recognition between States of foreign public documents and judicial decisions on filiation. At its meeting from 15 to 17 March 2016, the Council accepted the proposal of the Expert Group and invited it to continue along the path it had indicated, convening it to present its results at the 2017 Council meeting.
The Hague Conference is aware of the difficulty of creating this multilateral agreement because of the different approaches that exist in the different States, particularly with regard to the recognition of filiation, and the cost that this would represent for some of them to modify this approach and, for example, to recognize situations of filiation created by mechanisms contrary to public policy derived from the domestic law of each State.
The Expert Group has so far met in February 2016, January/February 2017, February 2018, September 2018, January/February 2019, October/November 2019, October 2020 and February 2021.
In March 2021, the General Affairs and Policy Council extended the mandate of the Expert Group for a further year to allow it to submit its final report to the CAGP at its 2023 meeting. This will allow the Group to convene at least one in situ meeting, prior to submitting its final report, as well as to continue its intersessional work and convene several short-term online meetings. It was in 2019[11] that the work of the expert group was oriented towards the development of two separate instruments.
- A general instrument of private international law on filiation;
- A separate protocol dealing with filiation resulting from surrogacy agreements of an international nature.
Detailed review of the Draft Hague Protocol. For the recognition of legal paternity established as a result of an international surrogacy agreement.
The Critique of the Draft Protocol of the Hague Conference on Private International Law (HCCH) is based, on the one hand, on the analysis of the periodic reports of the work of the group of experts responsible for preparing the draft protocol and, on the other hand, on the draft protocol itself.
INTRODUCTION
In their preamble, they explain the commitment of the Contracting Parties to the Protocol and their commitment to “the importance of legal kinship as a condition from which children [and parents] derive many important rights”. They state that their objective is to ensure the predictability, certainty and continuity of legal filiation in international situations for all persons, with the “desire to protect, in the context of international surrogacy conventions, the fundamental rights of the child and all persons concerned”. They express the best interests of the child as a primary consideration, referring to existing international instruments, including the United Nations Convention on the Rights of the Child of 20 November 1989.
It is striking that they constantly use the word “wish” to express the objectives of the protocol, giving the impression that they are not very sure that it is possible to achieve them. “Desiring to prevent the abduction, sale or trafficking of women and children within the framework of international surrogacy agreements, and taking into account the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 20 May 2000”. Once again, as in the Verona Principles, women’s rights are not even mentioned, the figure of the surrogate mother as a subject of human rights is not even considered, she is only mentioned as a party to the agreement. A fictitious best interest of the child is put forward, in order to internationally guarantee filiation so that the child born in this way is not left without protection. However, the interest of the child cannot be to be born, by a risky process, in the womb of a woman other than the one who will raise him, to satisfy the desire for a child of one or more persons, in other words more enlightening, to be bought or sold
In addition, it recognizes the diversity of views and approaches to the practice of state surrogacy. She attempts a neutral approach by stating that the protocol should not be understood as an endorsement or opposition to surrogacy. However, this is contradictory, since by regulating surrogacy at the international level, they whitewash the practice and open the doors to the international surrogacy market, even going against what many of the States to which they refer regulate.
After more than a decade of back and forth, of questions about the advisability of elaborating such a document, the decision to conclude the protocol, despite all its disadvantages, is challenging. The regulation of filiation at the international level is only an inevisal factor. Not only does this not solve the problem, but it encourages practice. We regret the decision to continue along this path, instead of fighting for the rights of children and women who suffer from the practice of surrogate mothers. We will analyse below the provisions proposed in the document:
The Expert Group discussed the scope of the possible draft Convention on Filiation (draft Convention) and the possible draft Protocol on Filiation resulting from a surrogacy convention (of an international character) (draft Protocol). The Group considered, in particular, the desirability and necessity of including:
- national adoptions within the scope of the draft Convention;
- filiation resulting from a national surrogacy agreement within the scope of the draft Convention or Protocol; and
- national adoptions carried out under a surrogacy agreement (national / international)
With regard to filiation resulting from a national surrogacy agreement, the Group of Experts considered the following aspects:
- a possible definition of the term “national surrogacy agreement”;
- whether the rules of the draft Convention (i.e. those relating to the recognition of judicial decisions and those concerning a possible uniform applicable law) and the draft Protocol (i.e. those on the recognition of filiation resulting from an international surrogacy agreement) would be appropriate for filiation resulting from a national surrogacy agreement and/or whether different rules or additional would be necessary; and
- in which instrument (i.e. the draft Convention or the draft Protocol) filiation resulting from a national surrogacy agreement should be included.
CHAPTER I – OBJECTS, DEFINITIONS AND SCOPE
Article 1 Objects
Article 1(a) calls for “in all Contracting States to ensure the recognition of legal filiation established as a result of an international surrogacy convention concluded in accordance with this Protocol”. This implies the automatic recognition of filiation, and thus the direct encouragement of surrogacy, belief in the right of the person to the child and the decriminalization of the practice. It engraves in marble the economic asymmetry between countries, which allows human exploitation and here, that of women, and contributes to inequality between human beings.
Subparagraph (b) calls upon the best interests of the child “to establish minimum safeguards to ensure that recognition of legal filiation is in the best interests of the child and with respect for the fundamental rights of the child and of every person, as recognized in international law”. There is a vague use of the notion of the best interests of the child, which is too often confused with the personal interests of the intended parents. The evocation of this notion functions as a boilerplate, a device to hide the crimes and offenses of surrogacy.
Paragraph (c) refers to the prevention of the abduction, sale or trafficking of women and children. It is rather contradictory. Whether altruistic or commercial, surrogacy is constitutive of the sale of children by contract and involves an instrumentalization of the surrogate mother. It is not possible, at the same time, to propose prevention while organizing a practice based on purchase and traffic.
Article 2 Definitions
Paragraph (a) defines “legal filiation” as the parent-child relationship established by law. Paragraph (b) refers to the “surrogate mother” as a woman who agrees to bear and give birth to a child for the intended parents under a surrogacy agreement (a contract). Therefore, subparagraph (c) defines “intended parents” as the person or persons who ask a surrogate mother to bear and give birth to a child for them under a surrogacy agreement.
However, the definition of “surrogate mother” is very limited, since it only concerns gestation and childbirth. The IVF process and hormonal treatment before pregnancy are omitted. As well as the postpartum period and the possible consequences or sequelae that childbirth can have on the mother. Indeed, what counts in the contract is the “product”, so the future baby, and the surrogate mother is unfortunately represented as a simple object. The document does not envisage all the submission of the woman to the techniques that lead to pregnancy (IVF, hormones, forced caesarean delivery …), because as long as the embryo is not implanted, the contract has no effect, everything that childbirth can produce or cause is not considered either. The consequences on the physical or psychological health of the biological mother (genetic or not), once she has given birth, no longer matter. The surrogate mother is both a party and an object of the contract.
We thus come to paragraph (d) which defines the “surrogacy agreement” (contract) as an “agreement (i) between a future surrogate mother and one or more future parents; (ii) concluded before the conception of a child; (iii) which provides that after the birth of the child, the parties [intend] [wish] that the intended parents be the [only] legal parents of the child, and that the surrogate mother hands over the child to them”. Such a definition of the agreement/contract is contrary to the Convention on the Rights of the Child, which prescribes in its article (to be sought) that the assignment of the unborn child may not take place before the birth of the child. It is defined as “agreement” because it avoids the word contract, and thus tries to get rid of the instrumentalization of women and children who undergo this practice.
The purpose of the “agreement” is to obtain a newborn. It is not humanly permissible to establish a contract or agreement whose purpose is to dispose of the subjects of law, the child and the surrogate mother. Nor is it permissible to establish a contract to appropriate a biological process that takes place in the body of another human being, in this case pregnancy. No one may dispose of women and children, i.e. human beings, by agreement, by contract, by national or international regulation.
Paragraph (e) defines “intermediary” as “a natural or legal person (…) that: (i) connects intended parents and surrogate mothers; and/or (ii) organizes and, during the process, mediates the surrogacy agreement.” It includes in this category clinics and health professionals, lawyers, agencies and brokers in surrogacy, provided that they perform the tasks described in points (i) and/or (ii). It further states that “they receive reasonable remuneration for the professional services necessary for surrogacy”.
The fact that surrogacy actors receive financial compensation for performing these specific tasks means that the practice is commercial, even if the remuneration of the many actors is ideally reasonable. The only person who does not profit from this so-called “altruistic” practice in this case is the surrogate mother.
Point (f) defines the conditions under which an “assisted reproduction technique (ART)” may be implemented, namely “procreation carried out by professionally qualified medical personnel in a medical establishment authorised by the law of the State in which they are situated, whether or not they are authorised, to provide such assistance, including under a surrogacy agreement” (assisted reproduction technology versus IVF is clarified).
Paragraph (g) defines a “gamete donor” as “a man or woman who provides his gametes for another person to use to conceive a child”.
This paragraph places sperm donation and egg donation on the same level. However, the “donation” of oocytes requires a very intensive hormonal treatment that carries certain risks. Nowhere does it say that the woman must be informed of the risks she incurs, nor that the intended parents must also be informed of these risks.
- (h) “national adoption” means the adoption of a child habitually resident in a State by prospective adoptive parents habitually resident in that State.
Article 3 Scope
The Protocol “shall apply where a prospective surrogate mother, habitually resident in a Contracting State (“the State of origin”), and the intended parents habitually resident in another Contracting State (“the host State”), conclude a surrogacy agreement (an “international surrogacy convention” or “CIS”)”.
The notion of intentional parent is open to criticism here, since paternity/maternity never precedes the birth of a child. It is this birth that creates the condition of parent. Here, however, parenthood results from the contract, a contract that precedes the birth of the child. moreover, here, it is acquired by contract. The protocol promotes, decriminalizes and therefore invites the practice of surrogacy by giving intentional parents a guarantee of filiation.
Article 4 Exclusions from the scope
This Protocol shall not apply to: (a) legal filiation falling within the scope of the Convention on [the Applicable Law,] recognition of foreign judgments [and cooperation] in matters of legal filiation; (b) intercountry adoption as defined in article 2 of the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption; (c) [domestic adoption;] (d) rights and obligations arising from legal filiation; and (e) [any other matter covered by the [existing] HCCH Conventions.
Article 5 Application
This article explains that the future parents “must apply to the competent authority of the State of origin (Producing State – Contracting State) for authorization to carry out an ISA” (International Surrogacy Arrangement). This first authority shall then inform the competent authority of the host State (Requested State)”. See diagram in the annex. Thus, the protocol involves States in the development of surrogacy agreements/contracts, even States that condemn surrogacy.
Article 6 Agreement for the continuation of the ISA
Following the previous article, the protocol lists the conditions under which an ISA may take place. Paragraph (a) gives the competent authority of the State of origin the responsibility for determining whether the requirements of Articles 7 to 11 have been met. Once the check has been carried out, it shall inform the competent authority of the host State which is responsible under subparagraph (b) for determining whether the conditions of Article 12 have been fulfilled, and shall inform the competent authority of the State of origin. Then, on the basis of point (c), the competent authorities of both States agree that the ISA may continue. No one may take measures to implement the ISA, other than those required to comply with Articles 7 to 12 of this Protocol, until the State of origin and the host State have granted authorization to proceed in accordance with this Article.
This article makes States complicit in the systems of exploitation, trafficking and sale of children. It considers filiation as a prior agreement between two States, where the State of origin determines the conditions under which the practice is regulated, and the host State (where the practice is generally prohibited) merely respects the determinations of the State of origin, in order to favour the ISA.
Article 7 The prospective surrogate mother and her spouse or partner
The conditions to be fulfilled by the surrogate mother to carry out the ISA are set by the competent authority of the State of origin, the text gives only minimum requirements: (a) is eligible and able to enter into the ISA in accordance with the law of the State of origin (at a minimum, a determination that the future surrogate mother is an adult of full capacity who has been certified by a professional duly qualified as being medically or mentally and physically fit to enter into a surrogacy agreement); (b) has been independently advised legally, medically and psychologically, and duly informed of: (i) the effects of his or her consent to the ISA, including the medical aspects of the surrogacy agreement and the legal filiation of the child or unborn children; and (ii) their right to withdraw their consent at any time during the term of the surrogacy agreement to any medical procedure, as well as to waive their legal filiation in respect of any unborn child, unless and until Article 13(a) has been complied with; (c) has given consent to the ISA freely, without fraud or coercion on the part of anyone, in the form legally required, and expressed or attested in writing [in his own language]O [with translation and interpretation services provided, at no cost to the prospective surrogate mother] and no consent has been withdrawn. It adds “if the intended surrogate mother has a spouse or partner, the requirements set out in points (b) and (c) of Article 7(1) must also have been fulfilled in respect of that spouse or partner”.
It states that the State of origin defines the requirements for surrogacy.
This situation is highly conflictual, as the State of origin is usually a developing country or a country where women’s rights are not guaranteed. In addition, the state can create commercial interests because there is a practice of “reproductive tourism”. This can lead to the exploitation of children born of this practice, and women at risk of poverty or exclusion, in order to further the interests of the market. The minimum requirement is that the pregnant mother be properly informed, but unfortunately, in reality, medical and psychological examinations are more aimed at determining her fertility and ability to bear children than at protecting her health. In terms of information, most of the time, contracts are not written in the mother tongue of surrogate mothers and even translated, many concepts and procedures are unknown to them, as well as the risks involved.
As for the fact that the surrogate mother gives her consent freely and without being coerced or threatened…, how could this be verified. Here comes the notion of false free choice, which is the great fallacy of machismo. The reflection does not start from the consent of the surrogate mother, but from that of society, from the belief that since “there is already equality” on paper (in the laws), any action of a woman is considered the fruit of a free choice. But this is false, the economic, social, cultural and family pressure will always be present, for the greatest benefit of the networks of exploitation, trafficking and smuggling. Moreover, States of origin are generally developing countries that often do not even recognize equality in their legislation and do not respect the rule of law. If freedom existed, why include the question of the authorization requested from the spouse? This reduces women to the ownership of their husbands and is a direct attack on women’s freedom and autonomy. It is also contradictory to lend a woman “autonomy” in her decision to become a surrogate mother and then deny her any capacity for self-determination by subordinating her to her husband’s decision, implying that the reproductive capacity of women belongs to the husband who can dispose of it.
Article 8 Potential parent(s)
The conditions to be fulfilled by the intended parents are also decided by the State of origin in a minimalist manner. In order to achieve the ISA, the State of origin determines: (a) who is eligible and fit to enter the ISA in accordance with its legislation by specifying “at a minimum, that each prospective potential parent is an adult of full capacity and without previous criminal convictions or police warnings, suggesting a potential risk of harm to the unborn, or for offences against children or other sexual offences”; (b) the intended parents have been independently advised legally, medically and psychologically, and duly informed of the effects of their consent to the ISA, including their financial and other responsibility, towards any child conceived as a result of the ISA; (c) have given their consent to the ISA freely, in the legally required form, expressed or attested in writing, and have not withdrawn it. Notwithstanding paragraph 1, any Contracting State may declare to the depositary of the Convention that an ISA falling within the scope of this Protocol shall take place only if it has determined that the intended parents habitually resident in its territory may also enter into the ISA under its law.
In order to carry out an adoption, in which the child’s right to have a family is taken into account, the requirements for the adoptive family are, in most cases, very comprehensive. It is a long process in which everything is carefully examined to ensure that the child will grow up in a healthy and adequate environment, without risk to his or her physical or moral integrity. But in the case of surrogacy, only the criminal record of the intended parents is examined. Nothing is provided for the safety and correct subsequent treatment of the child.
Article 9 The regime for surrogate mothers: minimum requirements
The minimum requirements are set out in this Article, the competent authority of the State of origin decides that they are met and the ISA is issued. These are formal requirements: a) the form of the parties to the agreement (contract), which includes the intended parents, the gestational mother and her spouse. Paragraph b) stipulates that the ISA must be finalized the launch of the process and in particular before any launch of medical procedures
The free consent of the gestational mother subject to the ratification of the spouse effectively deprives her of any effective freedom to accept or refuse.
Thus, surrogacy is intrinsically linked to the establishment of a contract, the object of which is ultimately the obtaining of a human being. The agreement stipulates that any party to the surrogacy contract has effective access to independent legal representation and medical advice for the duration of the surrogacy contract. But once the baby is born, it says nothing about the surrogate’s access to legal representation or medical advice for possible problems arising from the pregnancy.
Point 2 defines the content requirements: paragraph (a) says that the agreement (the contract), is subject to and governed by the law of the State of origin and is expressly authorized by that law, valid at the time the agreement is concluded and performed, letter b) that any medical procedure must be performed in the State of origin. (c) the design under the surrogacy agreement is carried out by IVF; (d) gametes of at least one of the intended parents are used; (e) no clause shall be included in the surrogacy agreement that: 37 (i) would restrict, in any way, the surrogate mother’s right to free and full determination in all matters concerning her health, well-being and freedom of movement; and/or (ii) penalizes the surrogate mother in any way for revoking her consent to all or part of the arrangement at any time; (f) any provision of the surrogacy agreement referring to the assignment or transfer of legal filiation is clearly considered unenforceable; (g) the origins of the child; (h) the obligation is placed on the intended parents to assume financial responsibility for children born by surrogacy immediately after birth; (i) the agreement identifies the intermediaries; (j) fees and costs and payments must be detailed in the agreement; and (k) all payments to the surrogate mother, where they do not constitute a reimbursement of expenses, shall be made before the start of the process in accordance with point (a) of Article 13.
On the basis of minimum requirements, as in virtually everything else, it is the State of origin that decides whether or not they are met. The ISA, whether it is called an agreement or an arrangement, is indeed a contract for the acquisition of a child and the planned reproductive exploitation of a woman. The fact that the surrogate mother’s spouse is a party to the contract calls into question the consent given by the surrogate mother. The article specifies that the surrogate mother can revoke her consent at any time, but the parentage link is obtained through the ISA, and the document is allowed before the surrogate mother has undergone the IVF procedure.
Article 10 Financial aspects
Again, it is for the State of origin to determine that: (a) all payments, including reimbursement of expenses to the surrogate mother, are: (i) reasonable; ii) non-refundable (except in case of error or fraud); and (iii) carried out in return for his time and should not have depended on the outcome of the pregnancy; (b) payments made to any intermediary and to any medical, legal or other professional or body as a result of the ISA are reasonable and proportionate to the services rendered.
If the costs do not depend on the outcome of the pregnancy, then what do they depend on? The fact that the object of the contract is the acquisition of a human being, a baby, cannot be ignored. And that the way to get it is a human body, the belly of a woman.
As far as intermediaries are concerned, the definitions of reasonable and proportional are very vague. Reasonable and proportionate in relation to what, in relation to what, on the basis of which country.
Article 11 State of origin
It is for the State of origin to decide whether the execution of the ISA is in conformity. Children born of surrogacy with an ISA can leave the state of origin with the intended parents after birth.
Children are deemed to have been “born of an ISA”. This formulation erases the reality, i.e. they were born to a surrogate mother.
Article 12 Host State
This article specifies that the competent authority of the host State must determine that the intended parents have the right to conclude the ISAS in accordance with the law of the host State. But he does not give any other details. And that “if the ISA is executed in accordance with its clauses and Article 13 is respected after birth, children born as a result of ISAs have the right to enter and reside permanently with the intended parents in the host State”.
The wording used also fails to indicate that these are children born by surrogacy, thus minimizing what the process involves and committing an act of violence against the surrogate mother, in masking her role in the process.
Section 13 Postpartum Requirements
After the birth of a child under an ISA, the transfer of the child to the receiving State shall take place only if the competent authorities of the State of origin are satisfied that the conditions for the consent of the surrogate mother, established after the birth, (subparagraph (a)), to renounce her legal filiation in respect of the child freely, not induced by fraud and without coercion on the part of anyone, in the required legal form and expressly or in writing, are fulfilled. And that no consent has been withdrawn; (b) all the requirements of Articles 9 and 10 have been complied with; and (c) the intended parents have agreed to take charge of the child.
Article 14 Transfer of the child or children to the receiving State
This article gives both States the responsibility to ensure the transfer of the child in safe and appropriate circumstances, taking all necessary measures to obtain permission to leave the State of origin and to enter and reside permanently in the receiving State.
This makes States absolutely complicit in the surrogacy procedure, and possibly in cases of trafficking and smuggling.
Article 15 Recognition of legal filiation
The article explains that where the competent authority of the State of origin certifies that legal filiation has been established as a result of an ISA conducted in accordance with the Protocol, legal filiation must be recognized ipso jure in the other Contracting State. It adds the following requirements: (a) specify when and by whom the provisions of Article 6 were taken; (b) certify that the requirements of Article 13 have been met; and (c) register the legal parent(s) of the child or children born as a result of the ISA.
Article 16 Reason for non-recognition
The article specifies that recognition of legal filiation may be refused in a Contracting State only if it is manifestly contrary to its public policy, taking into account the best interests of any child whose legal filiation is in question.
The question arises as to what happens when the State prohibits surrogacy: is it obliged in all cases to accept filiation, even if it is contrary to its legislative provisions?
Article 17 The competent authorities
The competent authorities shall be designated by the Contracting States. At the time of signature, ratification, acceptance of approval or accession, each Contracting State shall communicate to the Permanent Bureau of the Hague Conference on Private International Law the authority competent to act in its State in accordance with the Protocol and the extent of its functions. The Protocol therefore calls for a regulation of filiation, requiring the designation of competent authorities, according to the characteristics of each State, to ensure that filiation is guaranteed and carried out satisfactorily.
Article 18 Cooperation
It identifies the non-delegable duties that the competent authorities will have: to cooperate “to protect children and achieve the other objectives of the Protocol”; ensure that appropriate measures are taken to provide information on their states’ surrogacy and ISA laws; keep abreast of the operation of the Protocol and, to the extent possible, remove any obstacles to its implementation; and discourage any practice contrary to the objectives of the Protocol.
This article places all responsibility in the hands of States and their competent authorities. It therefore calls for State regulation of the international filiation of surrogate children. In addition, it adds “remove any obstacle to its implementation”. The only important thing in all that surrogacy entails, it seems, is that intentional parents bring surrogacy children back to their country of origin, and nothing else matters.
Article 19 Cooperation: delegable general duties of competent authorities
“The competent authorities shall, directly or through other public authorities, take all appropriate measures to prevent any financial or other undue gain in connection with an ISA.”
The article refers all responsibility to the State, and speaks only of the contracting parties specified by the ISA the ISA, but ignores the interests of other actors in the practice of surrogacy.
Article 20 Cooperation: specific tasks to be delegated by competent authorities to authorised intermediaries
Article defines the functions of the competent authorities of each State, which could be entrusted to intermediaries Article 21(d).
Article 21 Authorised intermediaries
This article defines the requirements for the authorisation of the intermediary. Who must: (a) be authorized to act as an intermediary in international surrogacy; b) be led and staffed by persons qualified by their ethical standards and by their training or experience to work in the field of surrogacy, in particular in an international context; (c) have no activity or practice within the scope of the holding; and (d) be subject to the supervision of the competent authorities of that State as to its composition, functioning and financial capacity.
This article makes absolutely no sense since surrogacy is not legal in the vast majority of countries in the world. This is unethical and immoral, especially in the international context, where countless scandals have resulted. Surrogacy is an exploitative practice in itself, so any intermediary participates in this exploitation. Fundamental rights such as the human dignity of women and children are violated. To demand that the State supervise this technique is to make it complicit in the reproductive exploitation of this international trade.
CHAPTER V VI – GENERAL PROVISIONS
Article 22 Undue financial gains
Again, it is the responsibility of States to ensure that, within the framework of their legislation, no one will derive financial or other undue gains from an ISA-related activity. And that only fees and expenses, including reasonable fees of those involved in the ISA, may be invoiced, paid or reimbursed. Intermediaries and authorities involved in an ISA will not receive an unreasonably high remuneration in relation to the services provided.
The outline of the intermediaries and authorities involved in the ISA is not in denial. The notion of unreasonable remuneration and its control seems rather unrealistic. In addition, citing authorities at the same level as commercial intermediaries suggests that they (public bodies) will receive some sort of financial compensation for the issuance of the ISA.
Article 23 Declarations on the genetic link
It addresses the requirements of the genetic connection, when none of the gametes of the intended parents are used in IVF and/or in cases where the surrogate’s gamete is used, filiation may or may not occur. It is the Contracting State that may declare to the depositary of the Protocol that it will not be obliged to recognize the legal filiation established as a result of an ISA.
In this article, it is accepted that it is possible to consider surrogacy where the child born would have no genetic link with the sponsors. The genetic link, this subterfuge that justifies the transfer of filiation may not exist, which is the outright sale of children.
Article 24 Origin of the child
The International Convention on the Rights of the Child enshrines the right of the child to know his or her origins. This article requires the competent authorities of a Contracting State to ensure that information concerning the origins of a person born as a result of an ISA is collected and stored securely for an indefinite period. Including the identity of the surrogate mother, any gamete donor and intended parents, the gestational history of the child, and the medical history of the genetic parents.
Article 25 Challenging the legal filiation of a child born or to be born as a result of an SAI, prior to his or her transfer to the host State
If, after obtaining the agreement between the State of origin and the receiving State on the continuation of the ISA, but before the transfer to the host State, a dispute arises as to the legality of the filiation of a child born or to be born as a result of an ISA, the article shall specify in paragraph (a) that the best interests of the child prevail.
Unfortunately, the best interests of the child are often interpreted as the interests of the sponsors.
Article 26 Synchronization
The competent authorities of the Contracting States must act expeditiously throughout the ISA procedure.
Article 27 Non-compliance with the Protocol
It confers on the competent authority the responsibility for ensuring that appropriate measures are taken, and imposes on any person or body which finds that a provision of the Protocol has not been complied with, or that there is a serious risk that it will not be complied with, the obligation to inform the competent authority of his State immediately.
The final clauses are being drafted by the expert group that will complete its work in 2023, they will concern the signature/ratification/accession procedures; territorial units; entry into force; denunciation; the duties of the depositary.
CONCLUSIONS
This protocol is a dangerous bet to privilege international legal filiation, and therefore the interests of the sponsoring parents (called intentional) and the opening of the international market for reproductive exploitation. Separating the legal sphere from global social and moral reality exposes women and children, in vulnerable conditions conducive to the practice of surrogacy, to the risks of exploitation, violence, trafficking, smuggling, violation of their right to human dignity, the elimination of their most fundamental rights as human beings.
The Protocol, as an international instrument, will lead to the liberalization of the practice of surrogacy, involving all countries as parties, even in contravention of their own national legislation. The protocol forgets that the practice generally enlists the most vulnerable women in developing countries, and that the intended parents are from developed countries. There is therefore a huge economic, social and cultural disproportion, not only between the surrogate mother and the sponsors, but also between the country of origin and the host country.
The risks arising from the practice, regulated or not, are very high for children They are exposed to trafficking in human beings, abandonment, ignorance of their genetic origins. The main reasons why a surrogate mother is used are the desire of some people to have children, as well as the advantages of a surrogacy contract compared to adoption (speed, ease, own genes…). It must be remembered that there is no right to have children, there is the right of children to grow up within a family, in an environment conducive to their development. While the best interests of the child are truly paramount, the purchase of children on demand cannot be regulated. From a feminist point of view, regulating surrogacy (whether at the national or international level) amounts to being complicit in the practice. Exploitation, disrespect and contempt for the dignity of women and the commodification of their reproductive capacities are intolerable. Therefore, the most important conclusion to be drawn from the study of the protocol is to abolish surrogacy.
[1] https://www.hcch.net/es/projects/legislative-pro-%20jects/parentage-surrogacy/surrogacy-2010-and-prior
[2] https://assets.hcch.net/docs/910669ed-7210-4873-948c-2b414ce7c07a.pdf
[3] da27b1a2-cc90-45bf-9d3e-7934fd51b10c.pdf (hcch.net)
[4] https://assets.hcch.net/docs/f5991e3e-0f8b-430c-b030-ca93c8ef1c0a.pdf
[5] The draft report (hcch.net)
[6] https://assets.hcch.net/docs/b4114840-8e21-4f34-b054-43fe4c01ab32.pdf
[7] https://assets.hcch.net/docs/0a94d5c2-a37b-4651-ad6b-55554ff508f7.pdf
[8] ea542cde-9665-48bd-ab90-2c88339ac020.pdf (hcch.net)
[9] 0a94d5c2-a37b-4651-ad6b-55554ff508f7.pdf (hcch.net)
[10] abf15fe3-18dc-4155-867b-2aaefe5016ed.pdf (hcch.net)
[11] https://www.hcch.net/fr/news-archive/details/?varevent=655