Surrogacy and the sale of children
During the 37th session of the Human Rights Council in March 2018, the Special Rapporteur Maud de Boer-Buquicchio presented her
thematic report on surrogacy and the sale of children. Her
press release, a summary of her
interactive dialogue with Member States, and a
summary of the side event organized on this subject are available through the relevant links.
Surrogacy as a reproductive practice is on the rise. It refers to a form of third party reproductive practice in which intending parent(s) contract a surrogate mother to give birth to a child. While modern practices of surrogacy offer new reproductive opportunities, they also introduce new legal and ethical dilemmas. Furthermore, the international regulatory vacuum that exists in relation to international surrogacy arrangements leaves children born through this method vulnerable to breaches of their rights, and the practice may often amount to the sale of children.
With a growing industry driven by demand, surrogacy is an area of concern for the rights and protection of the child.
There is also unease that the practice of engaging surrogate mothers in States with emerging economies to bear children for more wealthy intending parents from other States entails power imbalances and thus risks for both the children and surrogate mothers.
The report presented by the Special Rapporteur on the sale and sexual exploitation of children to the Human Rights Council noted the presence of abusive practices 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.
Some key recommendations from the report
Adopt clear and comprehensive legislation that prohibits the sale of children, as defined by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in the context of surrogacy;
- Create safeguards to prevent the sale of children in the context of commercial surrogacy, which should include either the prohibition of commercial surrogacy until and unless properly regulated systems are put in place to ensure that the prohibition on sale of children is upheld, or strict regulation of commercial surrogacy which ensures that the surrogate mother retains parentage and parental responsibility at birth and that all payments made to the surrogate mother are made prior to any legal or physical transfer of the child and are non-reimbursable (except in cases of fraud) and which rejects the enforceability of contractual provisions regarding parentage, parental responsibility, or restricting the rights (e.g. to health and freedom of movement) of the surrogate mother;
- Create safeguards to
prevent the sale of children in the context of altruistic surrogacy, which should include, where altruistic surrogacy is permitted, proper regulation of altruistic surrogacy (e.g. to ensure that all reimbursements and payments to surrogate mothers and intermediaries are reasonable and itemized and are subject to oversight by a court or other competent authority, and that the surrogate mother retains parentage and parental responsibility at birth);
- Ensure that in
all parentage and parental responsibility decisions involving a surrogacy arrangement, a court or competent authority makes a post-birth best interests of the child determination, which should be the paramount consideration;
- Closely regulate,
monitor and limit the financial aspects of all surrogacy arrangements, with a requirement for full disclosure of the financial aspects of all surrogacy arrangements to the court or competent authority reviewing the surrogacy arrangement;
Regulate all intermediaries involved in surrogacy arrangements, in regard to the financial aspects, relevant competencies, use of contractual arrangements, and ethical standards;
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;
- Ensure that any
international regulation developed in regard to surrogacy, or in regard to legal recognition of parentage in international surrogacy arrangements,
focuses on both private international law and public international law, providing in particular for the protection of the rights of the child, of surrogate mothers and of intending parents, and recognizing that there is no “right to a child” in international law;
Encourage other human rights mechanisms, such as the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women, and United Nations entities
to contribute, with further research, to discussions on surrogacy and its impact on the human rights of women and other stakeholders concerned, in order to develop human rights-based norms and standards and prevent abuses and violations.