All rights for surrogacy-born children full scale

Abstract

Surrogacy offers new opportunities for family formation, but presents legal and ethical challenges for the rights of different stakeholders concerned. This contribution looks at the practise from a child rights' perspective. Safeguards are needed to prevent exploitative practises and sale to occur and to protect the fundamental rights of surrogacy-born children, regardless of States' stance on surrogacy.

Introduction

Surrogacy as a reproductive practice has developed over the last decades as a method of family formation, often with a cross border dimension resulting increasingly in complex legal and ethical issues regarding the attribution of parenthood and parental authority, in which the protection of the best interests of the child should be a paramount consideration in light of varying realities across the world. ¹ There is no doubt that 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’. ²

There is no international consensus on how to respond to this development from the legal, moral or ethical perspective, and States have adopted different models of legislation on this issue ranging from prohibition to regulation. The international and national regulatory vacuum, as well as the existing disparity in relation to international surrogacy arrangements often leaves children born through surrogacy vulnerable to breaches of their fundamental rights. ³ Children may, for instance, be abandoned or they may be sold when considered undesirable; but also surrogate women may be exploited and trafficked, and ultimately surrogate-born children may run the risk of becoming stateless. ⁴

States that prohibit all forms of surrogacy arrangements, or commercial surrogacy, are often confronted with their nationals who return with a child born through surrogacy abroad. ⁵ It is of the upmost importance for such States to carefully conduct post-birth best interest determinations, protect the child’s identity rights and access to origins, and make independent assessments as to parentage, and also inquire into the treatment and post-birth consent of the surrogate woman. In all such proceedings, the child born from a surrogacy arrangement must not be punished or discriminated against due to the circumstances of his or her birth. ⁶

As United Nations Special Rapporteur on the sale and sexual exploitation of children, I have explored the practice of surrogacy from the perspective of the prohibition of the sale of children enshrined in Article 35 of the UN Convention on the Rights of the Child (‘CRC’) and Article 1 of the Optional Protocol on the sale of children, child prostitution and child pornography (‘OP-SC 1’). ⁷ In commercial surrogacy arrangements, the promised and actual transfer of the child is often of the essence of the arrangement and accompanying agreements and contracts, without which payments would be neither made nor promised and would be indicative of sale. ⁸ In the context of potentially exploitative practices, I have provided an analysis and recommendations on how to uphold the prohibition and prevention of the sale of children. ⁹ I recommended strict regulation based on human rights […] in order to ensure that surrogacy does not amount to the sale of children. ¹⁰ In this respect, ‘The first priority must be the prevention of the commodification of children’. ¹¹ The existence of oversight mechanisms is of vital importance in order to prevent any instances of sale and exploitation of children in the context of surrogacy. ¹²

In my most recent report to the UN General Assembly, I decided to further develop minimum safeguards for the protection of the rights of children born from surrogacy arrangements to guide States in efforts to ensure that the best interests of the child are duly taken into consideration regardless their stance on surrogacy. ¹³ In this new report, the best interest of the child is the key consideration, yet I am aware that the international and national regulatory vacuum, as well as the existing disparity in surrogacy laws and practices, potentially have implications on the multiple stakeholders that are involved in surrogacy arrangements, in particular, the children themselves, but also the women who act as surrogates, gamete donors, and intending parents. ¹⁴

A child is not a good or a service

Perhaps the most important argument to start a discussion on any form of third party induced family formation is that there is no right to have a child under international law. A child is not a good or a service that the State can guarantee or provide. ¹⁵ The UN Committee on the Rights of the Child, the oversight body that monitors the implementation of the CRC and its two Optional Protocols by its State Parties, stipulates clearly that children are rights holders and any attempt to commodify them is in contravention of the norms contained in the CRC. ¹⁶ Hence, ‘the prevention of the commodification of children, and specifically the rejection of a “right to a child”, while guaranteeing the rights of all the other involved stakeholders’, ¹⁷ is fundamental.

It is equally fundamental that appropriate safeguards are in place regarding the sale of children in the context of surrogacy. Abusive practices in the context of surrogacy are manifold. Examples include convicted sex offenders from Australia and Israel employing surrogate women from India and Thailand, a wealthy Japanese man employing 11 surrogate women, leading to the births of 16 infants in Thailand and India, the abandonment of a surrogacy-born infant with disability in Thailand and the abandonment or sale of ‘excess’ surrogate-born infants in twin births in India. Commercial surrogacy networks transfer surrogate women, sometimes while pregnant, across national borders in order to evade domestic laws; in one case, 15 Vietnamese women were found and freed by Thai authorities, leading to human trafficking charges in the context of a so-called baby-farming scheme. ¹⁸

Such safeguards ‘should focus on free and informed consent by surrogates and the role of intermediaries and should not lead to the criminalization of surrogates’. ¹⁹ For example, in Cambodia, 43 surrogates were arrested and detained under the provisions of Article 16 of the Law on Suppression of Human Trafficking and Sexual Exploitation. The surrogates were only released under the condition of keeping and raising the surrogate-born children. The case indicates the risks of a rigid application of criminal law that does not take into account the best interests of the child or the rights of the surrogates and intending parents. ²⁰

In respect to intending parents involved in cases of foul play, it must be kept in mind that criminalization will not normally be in the best interests of the child and, as indicated previously in the case of such offences, ‘alternatives to detention should be made available and applied on a case-by-case basis’. ²¹

Regulation is key

‘States, regardless of their policy perspectives on surrogacy, must create safeguards to prevent the sale’ ²² and trafficking of children in the context of surrogacy and to ensure the fundamental rights of children born through surrogacy arrangements, including the right to identity, access to origins and the family environment for the child. Leaving the matter unregulated entails serious risks for all parties involved, and in particular children. A pragmatic response on the part of prohibitionist jurisdictions is necessary and should be in line with human rights standards, including sufficient safeguards to deal with commonly observed violations of the rights of the child. National legislative and policy approaches to surrogacy should be based on a human rights framework to ensure the human rights of all parties involved and to prevent exploitative practices. ²³

Safeguards are crucial

Minimum safeguards should, in the first place, be designed to prevent a crime from being committed. Hence, safeguards should focus on free and informed consent by surrogates and the role of intermediaries. They should not lead to the criminalization of surrogates. ²⁴ Sanctions and penalties should focus on, mostly private, for non-profit intermediaries whose guiding motive is the successful completion of the surrogacy agreement with little to no regard for the rights of those involved. ²⁵ Regulation of the financial aspects of surrogacy arrangements in line with ethical standards would considerably reduce the business motivation of intermediaries.

Of primary concern are safeguarding measures directly addressing children themselves. All surrogate-born children, regardless of the legal status of the surrogacy arrangement under national or international law, are entitled to enjoy their human rights. Under no circumstance should children be discriminated against based on the way they have been conceived. States must bear this in mind as they will inevitably be confronted with surrogacies carried out abroad. Thus, prohibitionist states should not automatically accept or recognise parentage orders from commercial surrogacy jurisdictions, the only valid consideration being the best interests of the child. Such orders often come from jurisdictions that do not conduct individualized post-birth best interests of the child review and may also fail to provide criminal background checks, home studies, child abuse registry searches, and other protective measures.

Even where States prohibit the practice, intending parents have sought to evade the application of the law, primarily by seeking solutions abroad with the risk that children born from these arrangements bear the brunt in terms of enjoyment of the full scale of rights enshrined in the CRC, in particular, the right to identity and nationality. As a result of and in the absence of dedicated international regulation on the issue, there is a risk that rights and interests of different parties concerned meet with conflicting provisions of law leaving rights holders in a legal imbroglio or factual limbo. In this regard, three scenarios come to mind:

the nationality law in the country of birth does not recognise parentage (of intending parents);

the legislation in the country of birth is in contradiction with the legislation of the country of origin of intending parents; and

the child is abandoned in the country of birth.

Essential safeguards in this context must include laws, judicial and administrative procedures, enforcement actions, and other practices intended to prevent or remedy violations of human rights norms. ²⁶ States should

ensure that the core principle of the best interests of the child as stipulated in Article 3 of the CRC and further expanded in General Comment No. 14 of the UN Committee on the Rights of the Child, is the paramount consideration in all judicial and administrative decisions, relevant legislation and public and decision-making policies and practices concerning surrogate-born children. ²⁷

In this context, determining legal parentage is crucial, as children derive many important rights from it, such as the rights to identity and access to origins.

Ongoing international initiatives

Currently, the Permanent Bureau of the Hague Conference on Private International Law (‘HCCH’) is discussing the feasibility of developing a multilateral instrument in the area of legal parentage. ²⁸ The objective of the work is to ensure that the legal parentage established in one country could be recognized in other countries (i.e. that children have the same legal parents in different countries). The instrument should also protect the rights and welfare of children, parents and other parties involved in the conception of a child, in line with international human rights standard. However, the HCCH project does not intend to unify practices around legal parentage, including surrogacy.

Relevance of a genetic link

The question arises whether the existence of a genetic link plays a role in relation to the recognition of the legal relationship between the intending parents and child and, related to that, the child’s right to access of origins. In continental European jurisdictions, the rulings of the European Court of Human Rights (‘ECtHR’) have heavily influenced the decision of whether or not to recognise parenthood established abroad. The ECtHR has ruled, in specific cases, that where ‘a child has a genetic connection with one of the intending parents, the child’s right to respect for private life should lead to the recognition of legal parenthood’. ²⁹

In response to the request for an advisory opinion formulated by the French Court of Cassation in a situation where a child was born abroad through a gestational surrogacy arrangement using the gametes of the intended father and a third-party egg donor, the ECtHR, considering that the legal parent-child relationship with the intended father had been recognised in domestic law, expressed the view that

given the requirements of the child’s best interests and the reduced margin of appreciation […] in a situation such as that referred to by the Court of Cassation in its questions and as delimited by the Court […] the right to respect for private life, within the meaning of Article 8 of the Convention, of a child born abroad through a gestational surrogacy arrangement requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally-established abroad as the ‘legal mother’. ³⁰

As to the additional question of whether a distinction should be drawn between a situation of third party egg donation and the use of oocytes provided by the intending mother, the ECtHR appears to hold the view that the genetic link does play a role by stating that the need to provide with a possibility of recognition of a legal relationship ‘applies with even greater force’ when the child has been conceived using the eggs of the intended mother. ³¹ The other important question on which the ECtHR issued an opinion is that the child’s right to respect for private life does not require such recognition to take the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad but that another means, such as adoption of the child by the intended mother, may be used. On 4 October 2019, the French Court of Cassation ruled in favour of the transcription of the Californian birth certificates rather than second parent adoption. ³²

The absence of a genetic link had previously been an important consideration in the case of Paradiso and Campanelli. ³³ This case concerned the refusal by the Italian authorities to recognise the parent-child relationship, of a surrogate child born abroad. The Italian decision followed after the discovery that the genetic link between the surrogate-born child and the intending parents was absent, ³⁴ which led to the placement of the child in alternative care.

The Grand Chamber of the ECtHR considered ‘that there were no de facto family ties, refusing to acknowledge the legal parent-child relationship established abroad’. ³⁵ The ECtHR regarded as ‘legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children’. ³⁶ The Grand Chamber also accepted that the Italian courts, having concluded that the child would not suffer grave or irreparable harm as a result of the separation, ‘had struck a fair balance between the different interests at stake, while remaining within the margin of appreciation available to them’. ³⁷ It consequently dismissed the case of the applicants and the child remained in foster care.

Access to information

Access to information regarding their origins for surrogacy born children is an emerging issue. Generally, in the context of artificial reproductive technologies (‘ART’), donor anonymity is no longer the commonly accepted norm. Likewise, being informed at an appropriate age, of biological and genetic origins, as well as of the identity of the surrogate woman seems to fit into this pattern and would meet the requirements of Article 8 of the CRC. Clearly, this calls for the creation of rigorous storage and registration frameworks for this identity information to be collected, stored and acceded to.

In conclusion, it is of crucial importance that States put in place legislation, regulations and mechanisms for the determination of parentage for all children born from surrogacy that protect their rights, with exclusive reference to their best interests, irrespective of their place of birth and method of conception. Surrogacy arrangements are a challenge, which States inevitably have to come to terms with.