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Call for Inputs - Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material

Pursuant to the Human Rights Council Resolution 7/13, the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, Ms. Maud de Boer-Buquicchio, has initiated the preparation of her next thematic report to the General Assembly to be presented in October 2019.

The report will attempt to develop Safeguards for the protection of the rights of children born from surrogacy arrangements. The below questionnaire, addressed to Member States, civil society actors and other stakeholders, is meant to assist the Special Rapporteur to obtain information and elaborate comprehensive recommendations in relation to the rights of children born from surrogacy arrangements from the perspective of the best interests of the child as enshrined in international human rights law. The core standards guiding the Special Rapporteur in the context of surrogacy are the following:

  1. Best interests of the child as a primary consideration ((CRC art. 3, para. 1) and General comment No. 14 (2013)),
  2. Identity rights, access to origins and family environment (CRC art. 7, 8, 9, 10, 20),
  3. Prohibition of sale of children (CRC Art. 35 and OPSC) and child trafficking (CRC Art. 35; Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the  United Nations Convention against Transnational Organized Crime (Palermo Protocol)).

The views and opinions expressed in this questionnaire will be used to inform the Special Rapporteur’s report to the General Assembly. Funding permitting, the Special Rapporteur will seek to organise an inter-agency consultation on the topic, in cooperation with other relevant and/or interested agencies and concerned parties.

Rationale

In March 2018, the Special Rapporteur presented a thematic report on surrogacy and the sale of children (A/HRC/37/60). In her report, she examined the consideration of surrogacy solely through a child-rights perspective and as it relates to the sale of children.

Surrogacy, as a form of third party reproduction, is one way that individuals and couples may seek to realize their family formation intentions. "Surrogacy" was defined as a form of "third party" reproductive practice in which the intending parent(s) and the surrogate mother agree that the latter will become pregnant, gestate, and give birth to a child. Surrogacy arrangements generally include an expectation or agreement that the surrogate mother will legally and physically transfer the child to the intending parent(s) without retaining parentage or parental responsibility.

The report noted the presence of potentially exploitative practices in relation to children born from surrogacy arrangements, in both unregulated and regulated contexts, and provided analysis and recommendations on implementing the prohibition of the sale of children as it relates to surrogacy. In particular the Special Rapporteur invited all States to protect the rights of all surrogate-born children, regardless of the legal status of the surrogacy arrangement under national or international law, including by protecting the best interests of the child, protecting rights to identity and to access to origins and cooperating internationally to avoid statelessness.

The report was aimed to be a stepping-stone for further research on surrogacy by other human rights mechanisms and UN agencies, in particular as it relates to women’s rights. An expert group meeting on surrogacy and human rights was organized by several United Nations agencies in Bangkok in 2018 and it emphasized that legislative and policy approaches to surrogacy should be based on a human rights framework to ensure the rights of all parties involved and prevent exploitative practices.

While focusing on safeguards for protection of the rights of the child, the Special Rapporteur also recognizes the indivisibility of human rights and that such safeguards should be in line with the protection of human rights overall, given that surrogacy impacts the realization of rights for multiple stakeholders, particularly women who act as surrogates, gamete donors, and intending parents.

This new report intends to supplement her previous report with reflections on safeguards under public international law from the perspective of the rights of the child and is intended to complement the private international law focus of the Hague Conference on Private International Law (HCCH) project on parentage/surrogacy. The new report’s focus on safeguards will also complement the work of the International Social Service in developing international principles to ensure the protection of the rights of the child in the context of surrogacy arrangements.

While there are few comprehensive statistics, it is generally understood that surrogacy as a reproductive practice is increasing. Contemporary practices of surrogacy offer new opportunities for family formation for those who are otherwise unable to have a child, but they also introduce new legal and ethical challenges. Furthermore, the international and national regulatory vacuum that exists in relation to international surrogacy arrangements leaves children born through this method vulnerable to breaches of their rights.

With a growing industry driven by demand, where commercial interests can be a predominant factor, surrogacy is an area of concern for the rights and protection of the child. There is also concern that the practice of engaging surrogate mothers in States with emerging economies to bear children for more wealthy intending parents from other States entails potential power imbalances and thus risks for both the children and surrogate mothers. Concerns have also been raised that efforts to regulate, or ban, surrogacy practice can be discriminatory or undermining of women’s autonomy to make decisions about their bodies.

The questionnaire focuses in particular on safeguards guaranteeing the core standards outlined above. Safeguards in this context include laws, judicial and administrative procedures, enforcement actions, and other practices intended to prevent or remedy violations of human rights norms.

The questionnaire will enable States in particular to better understand and ensure that any procedures for the establishment, recognition and contestation of legal parentage take place with respect for the fundamental rights and welfare of all parties involved, the surrogate mother, gamete providers and intending parents and in particular the child born from surrogacy arrangements.   

Questionnaire on Safeguards for the protection of the rights of children born from surrogacy arrangements

  • In all responses to the following questions please ensure to indicate how the primary consideration of the best interests of the child is applied.
  • If surrogacy is prohibited or permitted, respectively, in your State, please respond only to the relevant parts of the questionnaire.

Identity, origins and parentage

  • Describe safeguards protecting identity rights (CRC art. 7 and 8) that are currently being implemented in your State. Safeguards include laws, judicial and administrative procedures, enforcement actions, and other practices intended to prevent or remedy violations of human rights norms. Note whether and how such general safeguards protecting identity rights apply in the context of surrogacy arrangements.
  • Describe safeguards protecting the access to origins (CRC art. 7 and 8) that are currently being implemented in your State. Note whether and how such general safeguards protecting the access to origins apply in the context of surrogacy arrangements.
  • Describe how the right to access origins is balanced with the right to privacy of parents and gamete donors. Indicate specifically how the best interests of the child are factored in.
  • Describe safeguards protecting the family environment (CRC art. 7, 8, 9, 10, 20) that are currently being implemented in your State. Note whether and how such general safeguards protecting the family environment apply in the context of surrogacy arrangements. Indicate specifically how the best interests of the child are factored in.
  • Provide information on existing laws, regulations or practices for the establishment, recognition and contestation of legal parentage. Indicate specifically how the best interests of the child are factored in. 
  • Specify how the establishment of parentage occurs in the context of surrogacy arrangements. Indicate specifically how the best interests of the child are factored in.

 
Sale of children  

  • Provide information on the laws prohibiting the sale and trafficking of children as well as corresponding implementation measures. Note whether and how such general safeguards against the sale and trafficking of children apply in the context of surrogacy arrangements. 
  • Describe any safeguards against the sale of children and child trafficking specifically created for surrogacy arrangements. 
  • Comment on the adequacy of current safeguards against the sale of children and child trafficking in the context of surrogacy arrangements.  
  • Note situations and provide data, if any, where a lack of safeguards have allowed or unduly risked violations of these norms in the context of surrogacy arrangements.
  • Note the number and types of cases where safeguards against the sale of children have been used in criminal cases in the context of surrogacy arrangements.  

Data

  • Indicate if surrogacy arrangements are legal in your State and if so how many occur every year.
  • For countries where surrogacy is permitted, please indicate the number of cases, if any, of contract breaches or of refusal to transfer the child.
  • Indicate if intermediaries facilitating surrogacy arrangements must be registered and, if so, how many are registered in your State.
  • For countries where surrogacy is prohibited, please indicate the number of cases, on an annual basis, where nationals have made a surrogacy arrangement abroad and have returned to their country of origin with the surrogate-born child.
  • Following on the previous question, please indicate under which circumstances authorities have allowed their nationals to bring the child born from a surrogacy arrangement back into their country of origin and if so please indicate which ones (e.g. domestic parenting orders, judgements, best interests of the child determinations, etc.), and how often they have been used.
  • Lastly, in the same context, please indicate how many cases have led to the non-recognition of parentage orders established in the State where the surrogacy arrangement occurred.   

The responses to the questionnaire can be submitted in English, French or Spanish. Please send your input in Word format by email to srsaleofchildren@ohchr.org before 31 May 2019. Please limit your responses to a maximum of 3000 words. Reports, academic studies and other types of background materials can be attached as an annex to the submission.

If not stated otherwise in your submission, the responses received will be published on the website of the Special Rapporteur.

For any further question or clarification, please do not hesitate to contact me through the Office of the United Nations High Commissioner for Human Rights (srsaleofchildren@ohchr.org).


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Ms. Maud de Boer-Buquicchio
Special Rapporteur on the sale and sexual exploitation of children
c/o Office of the High Commissioner for Human Rights
United Nations at Geneva
814 ave de la Paix
1211 Geneva 10
Switzerland
Fax: (+41 22) 917 90 06

Email: srsaleofchildren@ohchr.org