37/60 Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material - Note by the Secretariat

GE.18-00610 (E)

*1800610*

Human Rights Council Thirty-seventh session

26 February–23 March 2018

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

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

Note by the Secretariat

In her report, prepared pursuant to Human Rights Council resolutions 7/13 and 34/16,

the Special Rapporteur on the sale and sexual exploitation of children, including child

prostitution, child pornography and other child sexual abuse material provides an overview

of her activities since her previous report, presented to the Council in March 2017. The report

also contains a thematic study on surrogacy and sale of children, and recommendations on

how to uphold the prohibition of, and how to prevent, the sale of children.

United Nations A/HRC/37/60

General Assembly Distr.: General 15 January 2018

2

I. Introduction

1. The present report is submitted pursuant to Human Rights Council resolutions 7/13

and 34/16. It contains information on the activities of the Special Rapporteur on the sale and

sexual exploitation of children, including child prostitution, child pornography and other

child sexual abuse material since her previous report, which was presented to the Human

Rights Council in March 2017. It also contains a thematic study on surrogacy and sale of

children.

II. Activities

A. Country visits

2. The Special Rapporteur undertook a visit to the Dominican Republic from 8 to 15

May 2017.1 She also conducted a visit to the Lao People’s Democratic Republic, from 8 to

16 November 2017.2 The report of the visit to the Lao People’s Democratic Republic will be

presented to the Human Rights Council at its fortieth session. The Special Rapporteur thanks

both Governments for their cooperation before and during the visit.

3. The Government of Ireland has agreed to a visit of the Special Rapporteur from 14 to

21 May 2018, and the Government of Malaysia has accepted a visit from 24 September to 1

October 2018. The Special Rapporteur thanks both Governments for accepting the visits and

looks forward to a constructive dialogue in the preparation for both missions. She also invites

the Government of India to propose dates for a visit in 2019.

B. Other activities

1. Conferences and engagement with stakeholders3

4. On 4 October 2017, the Special Rapporteur chaired a session on child sexual abuse

online, at the World Congress on Child Dignity in the Digital World, organized by the Centre

for Child Protection of the Pontifical Gregorian University in Rome.

5. On 10 October 2017, the Special Rapporteur and the Special Rapporteur on trafficking

in persons, especially women and children, presented their joint report on vulnerabilities of

children to sale, trafficking, and other forms of exploitation in situations of conflict and

humanitarian crisis, to the General Assembly at its seventy-second session.4 On 11 October

2017, she participated in a panel discussion on preventing violence against children and

helping to focus efforts and track progress on the implementation of target 16.2 of the 2030

Agenda for Sustainable Development, which was organized by the United Nations Children’s

Fund (UNICEF), and by the Delegation of the European Union to the United Nations and the

Permanent Mission of Uruguay to the United Nations, in New York.

2. Communications

6. Summaries of six communications sent by the Special Rapporteur during the reporting

period appear in the communications reports of special procedures.

1 See A/HRC/37/60/Add.1.

2 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22416&LangID=E.

3 For activities of the Special Rapporteur between February and July 2017, see A/72/164.

4 See A/72/164.

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III. Study on surrogacy and sale of children

A. Objective, scope and methodology

7. The mandate of the Special Rapporteur on the sale and sexual exploitation of children,

including child prostitution, child pornography and other child sexual abuse material includes

“matters relating to the sale of children”.5 The Special Rapporteur’s last two reports have

addressed a “gap” that arose when inadequate attention had been given to issues beyond “the

sexual exploitation of children”.6 Hence, the Special Rapporteur’s report to the General

Assembly at its seventy-first session focused on the sale of children for the purpose of forced

labour7 and her report to the Human Rights Council at its thirty-fourth session focused on

illegal adoptions.8

8. The present study addresses a further such “gap”, regarding the sale of children in the

context of surrogacy. It is a logical follow-up to the study on illegal adoptions, wherein the

Special Rapporteur already noted that “the international regulatory vacuum that persists in

relation to international commercial surrogacy arrangements leaves children born through

this method vulnerable to breaches of their rights, and the practice often amounts to the sale

of children”.9 The Committee on the Rights of the Child has consistently expressed similar

concerns that surrogacy could lead or amount to the sale of children.10

9. The present study therefore examines when surrogacy arrangements constitute the

sale of children under international human rights law and 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. It reviews the wide spectrum of policies on surrogacy, in a context where

explicit and specific international norms are currently lacking. The study notes the presence

of abusive practices in both unregulated and regulated contexts. In order to strengthen the

legitimacy and viability of the fundamental norm prohibiting the sale of children, the study

provides analysis and recommendations on implementing this prohibition as it relates to

surrogacy.

10. “Surrogacy” refers to a form of “third party” reproductive practice in which the

intending parent(s) and the surrogate mother agree that the surrogate mother 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. 11

Surrogacy generally occurs in the context of assisted reproductive technologies — such as in

vitro fertilization and embryo transfer for gestational (or full) surrogacy (where the surrogate

mother is genetically unrelated to the child) and artificial insemination for traditional (or

partial) surrogacy (where the surrogate mother is genetically related to the child). Gametes

can also be obtained, by purchase or “donation”, from additional parties who are neither the

intending parent(s) nor the surrogate mother, and hence the intending parent(s) may or may

not be genetically related to the child.12

11. The analysis of sale of children that is contained in the present study is applicable to

both international and national surrogacy, traditional and gestational surrogacy, and

commercial and altruistic surrogacy. The study concentrates on the prohibition of sale of

5 See Commission on Human Rights resolution 1990/68.

6 See A/71/261, para. 15.

7 Ibid., para. 16.

8 See A/HRC/34/55.

9 Ibid., para. 52.

10 See CRC/C/OPSC/USA/CO/2, para. 29; CRC/C/IND/CO/3-4, para. 57 (d); CRC/C/MEX/CO/4-5,

para. 69 (b); CRC/C/OPSC/USA/CO/3-4, para. 24; and CRC/C/OPSC/ISR/CO/1, para. 28.

11 See the Hague Conference on Private International Law (HCCH), “A preliminary report on the issues

arising from international surrogacy arrangements” (March 2012), available at

https://assets.hcch.net/docs/d4ff8ecd-f747-46da-86c3-61074e9b17fe.pdf.

12 Ibid. It would also be traditional surrogacy if in vitro fertilization and embryo transfer were used

employing the surrogate mother’s eggs.

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children and child rights as per international standards and protection issues that arise under

contemporary surrogacy practice. The implications of surrogacy for women’s rights is

beyond the scope of the present study, except as regards issues that affect both children’s

rights and women’s rights, or certain clear rights violations that illuminate regulatory or

enforcement issues. The Special Rapporteur echoes the position of other human rights experts

who have stated that discrimination against women, through the instrumentalization of their

bodies for cultural, political, economic and other purposes, including when rooted in

patriarchal conservatism, cannot be accepted.13 The Special Rapporteur encourages other

human rights mechanisms 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. Nothing in the present report should be interpreted as a restriction of women’s

autonomy in decision-making or of their rights to sexual and reproductive health.

12. The study benefited from contributions by international experts and relevant

international organizations. The Special Rapporteur organized an expert meeting on

surrogacy in Geneva on 1 November 2017. The Special Rapporteur also participated in an

expert meeting on surrogacy convened by the International Social Service in May 2017 at

the Department of Law of the University of Verona, Italy. The Special Rapporteur

particularly wants to thank members of the core expert group of the International Social

Service surrogacy project for contributions in developing the study. The Special Rapporteur

has benefited from reviewing the work of the Committee on the Rights of the Child, the

Council of Europe and the Hague Conference on Private International Law. The Special

Rapporteur has also gained insight from her missions to various countries.

B. Urgent concerns

13. Surrogacy as a reproductive practice is on the rise. Indeed, as intercountry adoptions

have fallen in number and increasingly become subject to international standards, the

numbers of international surrogacy arrangements have rapidly increased in the absence of

international standards.14 Therefore, surrogacy, like intercountry adoption in the 1980s and

1990s, has emerged as an area of concern where a demand-driven system may endanger the

rights of children. 15 There is also “unease” and concern that “the practice of engaging

surrogates in States with emerging economies to bear children for more wealthy intending

parents from other States has dimensions similar to those discussed in the preparatory reports

on intercountry adoption”.16

14. The cross-border patterns of international surrogacy arrangements are diverse.

Commonly, intending parents from developed countries, including Australia, Canada,

France, Germany, Israel, Italy, Norway, Spain, the United Kingdom of Great Britain and

Northern Ireland and the United States of America, have engaged in commercial international

surrogacy arrangements with surrogate mothers in developing countries, such as Cambodia,

India, the Lao People’s Democratic Republic, Nepal and Thailand.17 However, California and

other jurisdictions in the United States are centres for commercial international surrogacy

arrangements, as are Georgia, the Russian Federation and Ukraine, creating a different set of

13 See A/HRC/32/44, para. 106 (a).

14 See Katarina Trimmings and Paul Beaumont, eds., International Surrogacy Arrangements (2013), pp.

439, 441 and 442.

15 See J.H.A. van Loon, “Report on intercountry adoption”, preliminary document No. 1, sect. E,

pp. 51–55, available at https://assets.hcch.net/upload/adoption_rpt1990vloon.pdf; cf. HCCH, “A

preliminary report on the issues arising from international surrogacy arrangements”; and see Chief

Federal Magistrate Pascoe (Australia), “Intercountry surrogacy – a new form of trafficking?”,

available at www.austlii.edu.au/au/journals/FedJSchol/2012/15.pdf; and Chantal Saclier (International

Social Service), “Children and adoption: which rights and whose?”, UNICEF, Innocenti Digest 4:

Intercountry Adoption, pp. 12–13.

16 See HCCH, “A preliminary report on the issues arising from international surrogacy arrangements”,

para. 5 as well as footnote 28.

17 See Trimmings and Beaumont, p. 472.

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cross-border relationships.18 In addition, intending parents from China frequently engage in

commercial surrogacy in South-East Asia and the United States.19 All of these patterns pose

human rights concerns.

15. National laws governing surrogacy vary across a spectrum from prohibitionist to

permissive. This variation occurs across national boundaries and sometimes within national

boundaries, as surrogacy is sometimes regulated primarily by local law (i.e. in Australia,

Mexico and the United States).20 The most prohibitionist jurisdictions, such as France and

Germany, ban all forms of surrogacy, including commercial and altruistic, and traditional

and gestational.21 Most jurisdictions with laws governing surrogacy, including Australia,

Greece, New Zealand, South Africa and the United Kingdom, prohibit “commercial”, “for-

profit” or “compensated” surrogacy, while explicitly or implicitly permitting “altruistic”

surrogacy.22 Only a small minority of States explicitly permit commercial surrogacy for both

national and foreign intending parents, thereby choosing to become centres for both national

and international commercial surrogacy.23 Cambodia, India, Nepal and Thailand, and the

Mexican State of Tabasco, are examples of States or jurisdictions which have served as

centres for commercial international surrogacy arrangements but have recently taken steps to

prohibit or limit such arrangements, generally in response to abusive practices.24 However,

Georgia, the Russian Federation and Ukraine, and some states in the United States, have for

a sustained period of time chosen to remain centres for international surrogacy

arrangements.25

16. Laws governing surrogacy also vary across a spectrum from extensive to non-

existent.26 Although there are historical antecedents to surrogacy,27 modern practices are

related to the rise of assisted reproductive technologies, which not only offer new

reproductive opportunities but also introduce new legal and ethical dilemmas. Hence, it is

often said that the law is having difficulty keeping up with developing technologies and

practices.28 Many countries, for example Argentina, Belgium, Guatemala, Ireland and Japan,

18 Ibid., pp. 311–324, 357–366 and 464–469. See also HCCH, “A preliminary report on the issues

arising from international surrogacy arrangements”, footnote 94; and HCCH, “A study of legal

parentage and the issues arising from international surrogacy arrangements” (March 2014), para. 130,

available at https://assets.hcch.net/docs/bb90cfd2-a66a-4fe4-a05b-55f33b009cfc.pdf; and Re D (A

Child) (Surrogacy) [2014] EWHC 2121 (Fam) (Georgia).

19 See footnotes 22–24 below.

20 See Trimmings and Beaumont, pp. 25, 256 and 257; and Courtney Joslin (reporter), Uniform

Parentage Act Drafting Committee (8 February 2016), pp. 3–6, available at

www.uniformlaws.org/shared/docs/parentage/2016feb8_AUPA_Memo_Revision%20Drafting%20Co

mmittee%20Surrogacy.pdf.

21 See Trimmings and Beaumont, pp. 119–142.

22 Ibid., p. 454; HCCH, “A preliminary report on the issues arising from international surrogacy

arrangements”, para. 18; and Chief Judge John Pascoe (Australia), Third Annual Legalwise

International Family Law Conference, Shanghai, China, 17–20 September 2014, available at

www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/speeches-

conference-papers/2014/paper-pascoe-international-commercial-surrogacy.

23 See Chief Judge John Pascoe (Australia), Third Annual Legalwise International Family Law

Conference; and Trimmings and Beaumont, pp. 443–454.

24 See “An update on the work of the Hague Conference on Private International Law”, Mededelingen

van de Koninklijke Nederlandse Vereniging voor Internationaal Recht, No. 144 (2017); and Audrey

Wilson, “How Asia’s surrogate mothers became a cross-border business, South China Morning Post,

available at www.scmp.com/week-asia/society/article/2096675/how-asias-surrogate-mothers-became-

cross-border-business.

25 See Trimmings and Beaumont, pp. 357–365 and 443. In regard to Georgia, see HCCH, “A

preliminary report on the issues arising from international surrogacy arrangements”, footnote 94;

HCCH, “A study of legal parentage and the issues arising from international surrogacy

arrangements”, para. 130; and Re D (A Child) (Surrogacy) [2014] EWHC 2121(Fam).

26 See Trimmings and Beaumont, pp. 443–454.

27 See David Smolin, “Surrogacy as the sale of children”, Pepperdine Law Review, vol. 43 (2016), pp.

265 and 289–302, available at https://works.bepress.com/david_smolin/19/.

28 See, for example, Chief Federal Magistrate Pascoe, “The rise of surrogate parenting”, twenty-fourth

Law Asia Conference, Seoul, Republic of Korea, 10 October 2011, at sect. 6 (quoting Justice

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and many jurisdictions in the United States, have thus far failed to enact legislation

concerning surrogacy, whether prohibitionist or permissive, leaving courts and competent

authorities to develop their own responses to the developing practice of surrogacy.29 In the

absence of surrogacy-specific laws, surrogacy arrangements are often completed using pre-

existing laws governing parentage, termination of parental rights and adoption.30 Those

jurisdictions which have legislated more explicitly as to surrogacy vary in the degree of

comprehensiveness and clarity. The absence of clear and comprehensive laws addressing

surrogacy can lead to unregulated commercial surrogacy developing, with accompanying

exploitative practices.31

17. Intending parents often travel from jurisdictions prohibiting commercial surrogacy,

such as Australia, France or Italy, to jurisdictions permitting commercial surrogacy, and then

seek to return with surrogate-born children to their home jurisdiction. Such travel

intentionally evades prohibitionist laws and creates dilemmas for the jurisdictions involved.32

Competent authorities and courts are often placed in the situation of being asked to validate,

after the fact, international surrogacy arrangements that are illegal in one or both

jurisdictions.33 The imperative to protect the rights of these surrogate-born children adds to

the dilemma.34 Sympathy for intending parents and their wish to engage in family formation

further complicates the issues. Concern for surrogate mothers, especially those who are

exercising agency in contexts that often are particularly vulnerable to exploitation due to

poverty, powerlessness, a lack of education, and multiple forms of discrimination, sharpens

the dilemmas faced by States.35

18. International commercial surrogacy networks swiftly move from jurisdiction to

jurisdiction as laws change. Indeed, sometimes in vitro fertilization and embryo transfer are

conducted in one State, and then the surrogate mother is moved to a second State for the

birth, with the intending parent(s) coming from a third State.36 Hence, the need for the

development and implementation of international standards is clear.

19. These unresolved dilemmas have created urgent concerns both for States and for the

international community. Some are primarily concerned with the dilemmas and impact on

human rights produced when international surrogacy is conducted to evade national

prohibitions. Others are primarily concerned with abusive practices that can occur due to the

lack of governing international and/or national law. From this perspective, the required

solution is international and national legal frameworks that clearly regulate surrogacy.37

20. Some recommend legalizing and regulating both altruistic and commercial surrogacy.

The hope is that legalization combined with a regulatory framework would protect the rights,

dignity and interests of all parties, while avoiding the harms and violations of underground

Benjamin), available at www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-

publications/speeches-conference-papers/2011/speech-pascoe-lawasia-2011.

29 See Trimmings and Beaumont, pp. 5–24, 49–83, 167–174, 219–230, 247–253 and 391; and European

Parliament, “A comparative study on the regime of surrogacy in EU member States” (2013), p. 206,

available at www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL-

JURI_ET(2013)474403.

30 Ibid.

31 See sources cited in footnote 10 above; as well as Trimmings and Beaumont, p. 442; and HCCH, “A

preliminary report on the issues arising from international surrogacy arrangements”.

32 See HCCH, “A preliminary report on the issues arising from international surrogacy arrangements”,

paras. 25, 28, 31 and 32; and the European Court of Human Rights — Mennesson v. France,

application No. 65192/11, judgment of 26 June 2014; Labassee v. France, application No. 65941/11,

judgment of 26 June 2014; and Paradiso and Campanelli v. Italy, application No. 25358/12, Grand

Chamber judgment of 24 January 2017.

33 See HCCH, “A study of legal parentage and the issues arising from international surrogacy

arrangements”, para. 215.

34 See Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), para. 22, per Justice Hedley.

35 See HCCH, “A study of legal parentage and the issues arising from international surrogacy

arrangements”.

36 See Audrey Wilson, “How Asia’s surrogate mothers became a cross-border business”.

37 See HCCH — “A preliminary report on the issues arising from international surrogacy arrangements”

and “A study of legal parentage and the issues arising from international surrogacy arrangements”.

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or unregulated surrogacy practice. Others argue for prohibiting all forms of surrogacy, based

on human dignity concerns, or on the view that surrogacy is inherently exploitative or that in

current contexts of power imbalance it is usually exploitative. The most frequently preferred

answer, as indicated by State legislation and practice, has been to prohibit commercial

surrogacy while permitting altruistic surrogacy, based on the viewpoint that commercial

surrogacy commonly commodifies children and exploits surrogate mothers.38 The inability

of the Council of Europe to adopt a position exemplifies the depth of the conflict, as an

overwhelming majority favoured either prohibiting commercial surrogacy or prohibiting all

surrogacy, and yet ultimately no position was adopted due to the split between those

positions.39

21. Even if agreement could be reached among the various options regarding prohibition,

the issue of “appropriate” regulation is equally divisive. Thus, there are fundamental

disagreements on basic regulatory issues — such as determinations of parentage, whether to

conduct best interests determinations, regulation of the financial aspects of surrogacy, the

status of “surrogate mothers” and even the terminology, implementation of the rights of

identity and access to origins, suitability reviews of intending parents, the significance of

genetic connections, and the role of contracts and the courts. Thus, even those who argue for

legalizing and regulating surrogacy may completely disagree about the appropriate forms of

regulation.40

22. Amidst this controversy, the present study identifies a safe harbour, in a simple

premise: all States are obligated to prohibit, and to create safeguards to prevent, the sale of

children. While the imperative to prohibit and prevent the sale of children does not provide

answers to all policy debates over surrogacy, it does narrow the scope of permissible

approaches.

23. This focus on the prohibition of sale of children responds to the risk that States and

the international community would attempt to legalize and normalize the sale of children and

other human rights violations when regulating surrogacy. Amidst the demand for governing

law, the demand for children, and the influence of a wealthy and growing surrogacy industry,

there is a risk that the governing law that is adopted will undermine fundamental human

rights. The demand that domestic parentage orders be recognized globally without

appropriate restrictions and without consideration of human rights concerns raises the related

risk that a minority of jurisdictions with permissive approaches to commercial surrogacy, and

with regulations that fail to protect the rights of vulnerable parties against exploitation, could

normalize practices globally that violate human rights.41

24. Surrogacy, in particular commercial surrogacy, often involves abusive practices.

Furthermore, it involves direct challenges to the legitimacy of human rights norms, as some

of the existing legal regimes for surrogacy purport to legalize practices that violate the

international prohibition on sale of children, as well as other human rights norms. Moreover,

many of the arguments provided in support of these legal regimes for commercial surrogacy

could, if accepted, legitimate practices in other fields, such as adoption, that are considered

illicit. Thus, if this type of governing legal regime becomes accepted, whether as international

or national law, or through recognition principles, it would undermine established human

rights norms and standards.

25. The international community cannot relinquish gains made in the development of

child rights norms and standards, including those developed in the context of adoption. In

prior decades, the international community confronted adoption systems which were based

on satisfying adult demands for children and were driven by commercial interests and

38 See HCCH, “A preliminary report on the issues arising from international surrogacy arrangements”,

para. 18; see also Judge Pascoe 2014 as per footnote 22 above.

39 See “An update on the work of the Hague Conference”, pp. 102–103 and footnotes 32–33.

40 See HCCH — “A preliminary report on the issues arising from international surrogacy arrangements”

and “A study of legal parentage and the issues arising from international surrogacy arrangements”; cf.

American Bar Association report (see below).

41 Cf. American Bar Association, report and resolution 112B, available at https://www.americanbar.org/

content/dam/aba/uncategorized/family/Hague_Consideration.authcheckdam.pdf.

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financial incentives, and which in practice exploited the vulnerability of birth parents.42 In

response, the international community has insisted that the best interests of the child be the

“paramount consideration” in regard to adoption, 43 created standards requiring strict

regulation of the financial aspects of intercountry adoption,44 sought to protect vulnerable

birth families, and denied that prospective adoptive parents have a right to a child. 45

Implementation of these norms in relation to adoption has been difficult, but significant

progress has been made in terms of standard-setting, monitoring and compliance.46

26. Yet, the commercial surrogacy industry and its advocates have insisted that the kinds

of systems rejected by the international community in regard to adoption be accepted in

regard to surrogacy systems. Hence, the commercial surrogacy industry and its advocates

insist that commercial surrogacy be accepted worldwide as a market-based system designed

to respond primarily to adult demands for children, whereby parentage is determined

primarily by contract. For example, the American Bar Association, which represents over

400,000 attorneys,47 advocates for commercial surrogacy nationally and internationally.48

The stance of the American Bar Association is of international significance because it

advocates for commercial international surrogacy arrangements and for intermediaries who

practise globally.

27. The American Bar Association notes that “it is undeniable that the commissioning of

children through surrogacy — for money — represents a market”.49 The American Bar

Association praises this “market”, noting that “market-based mechanisms have allowed

international surrogacy to operate efficiently”. 50 The American Bar Association rejects

application of the best interests of the child standard to surrogacy,51 rejects most forms of

suitability review and evaluation of parental fitness of intending parents,52 rejects caps for

compensation for surrogate mothers and gamete donors,53 rejects licensing requirements for

surrogacy agencies,54 rejects rights to birth records or origins information,55 rejects the Hague

Convention on Protection of Children and Cooperation in respect of Intercountry Adoption,

of 1993, as a “model for a surrogacy convention”, 56 and rejects bilateral treaties on

surrogacy. 57 The American Bar Association states that “any focus on regulating the

international surrogacy market itself is misguided”.58 Indeed, the American Bar Association

urges that any international instrument on surrogacy not address human rights concerns;59

hence, it rejects “regulation of the surrogacy industry for the purpose of reducing human

rights violations”.60 If this position is endorsed, the gains in developing child rights norms

42 See, for example, Saclier, “Children and adoption”, pp. 12–13; and van Loon, “Report on intercountry

adoption”.

43 See the Convention on the Rights of the Child, art. 21.

44 Ibid., art. 21 (d); 1993 Hague Convention, arts. 4 (c) (3), 8 and 32; and HCCH, “Note on the financial

aspects of intercountry adoption (2014), available from https://www.hcch.net/en/publications-and-

studies/details4/?pid=6310.

45 See the 1993 Hague Convention, art. 4; and Saclier, “Children and adoption”, pp. 12–13.

46 See the Convention on the Rights of the Child, arts. 20–21; the 1993 Hague Convention; and

A/HRC/34/55.

47 See https://www.americanbar.org/about_the_aba.html.

48 See American Bar Association report and resolution. It should be noted that the Association does not

represent the Government of the United States and that there are both permissive and prohibitionist

jurisdictions in the United States. See Joslin, footnote 7.

49 American Bar Association report, p. 9.

50 Ibid., p. 11.

51 Ibid., pp. 15–16.

52 Ibid., pp. 4, 17–18.

53 Ibid., pp. 20–21.

54 Ibid., p. 20.

55 Ibid., pp. 21–22.

56 Ibid., p. 15.

57 Ibid., pp. 4–5.

58 Ibid., p. 14.

59 Ibid., p. 1.

60 Ibid., p. 7.

9

and standards in relation to adoption will be erased, and a new generation of human rights

violations will emerge.

28. There are significant differences between adoption and surrogacy, and not all rules

applicable to adoption apply to surrogacy. Nonetheless, certain human rights principles are

applicable to both, including the prohibition of the sale of children,61 the best interests of the

child as a paramount consideration,62 the lack of a right to a child,63 strict regulations and

limitations regarding financial transactions,64 rights to identity and access to origins,65 and

protections against exploitation.66 The present report focuses on the necessity of maintaining

these human rights standards against the pressures created by the large-scale practice of a

market- and contract-based form of commercial surrogacy.

C. Abusive practices in surrogacy systems

29. Abusive practices in the context of surrogacy are well documented. Examples include

convicted sex offenders from Australia and Israel employing surrogate mothers from India

and Thailand,67 a wealthy Japanese man employing 11 surrogate mothers, leading to the

births of 16 infants in Thailand and India,68 the abandonment of a surrogacy-born infant with

disability in Thailand,69 and the abandonment or sale of “excess” surrogate-born infants in

twin births in India.70 Commercial surrogacy networks transfer surrogate mothers, 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 baby-farming scheme.71

30. Many of these abuses occur in unregulated contexts, often in cases involving intending

parents from Western countries employing for-profit intermediaries to contract with

vulnerable surrogate mothers in developing countries.72 However, abusive practices also

occur in purportedly well-regulated commercial surrogacy jurisdictions. For example, two

prominent surrogacy attorneys were criminally convicted in a baby-selling ring in California,

a centre for international surrogacy arrangements.73 According to governmental authorities,

a prominent surrogacy attorney admitted that “she and her conspirators used gestational

carriers to create an inventory of unborn babies that they would sell for over $100,000

61 See the Convention on the Rights of the Child, art. 35; and the Optional Protocol to the Convention

on the Rights of the Child on the sale of children, child prostitution and child pornography.

62 See the Convention on the Rights of the Child, arts. 3 and 21.

63 Saclier, “Children and adoption”, pp. 12–13; and Van Bueren, The International Law on the Rights of

the Child (1995).

64 See the Convention on the Rights of the Child, art. 21 (d); the 1993 Hague Convention, arts. 4 (c) (3),

8 and 32; and HCCH, “Note on the financial aspects of intercountry adoption”.

65 See the Convention on the Rights of the Child, arts. 7, 8 and 9.

66 Ibid., art. 35; the Optional Protocol to the Convention on the Rights of the Child on the sale of

children, child prostitution and child pornography; and the Trafficking in Persons Protocol, of 2000.

67 See, for example, www.geneticsandsociety.org/article.php?id=6933; www.abc.net.au/news/2014-08-

06/baby-gammys-father-convicted-on-more-than-20-child-sex-charges/5653502; and [2016] FCWA

17, available at www.familycourt.wa.gov.au/_files/Publications/2016FCWA17anon.pdf.

68 See Samantha Hawley, Japanese man fathers 16th baby via surrogate in Thailand, 9 September 2014,

at www.abc.net.au/news/2014-09-10/japanese-surrogacy-man-has-another-baby/5732856.

69 See [2016] FCWA 17 as per footnote 67 above.

70 See, for example, www.bionews.org.uk/page_460525.asp and http://nymag.com/thecut/2015/03/dark-

side-of-international-surrogacy.html.

71 See https://www.pri.org/stories/2011-03-18/underworld-upending-asian-baby-farm and

www.scmp.com/week-asia/society/article/2096675/how-asias-surrogate-mothers-became-cross-

border-business.

72 See sources cited in footnotes 67–71 above.

73 Smolin, “Surrogacy as sale of children”, pp. 328–330.

10

each”.74 The convicted attorney told the local media that, as to abusive practices, she was the

“tip of the iceberg” of a “corrupt” “billion-dollar industry”.75

31. Another case from California, Cook v. Harding,76 reveals the intentional regulatory

omissions in a regulated commercial surrogacy jurisdiction: “The statute places no conditions

on who can serve as a surrogate (beyond requiring that she not be genetically related to the

foetuses) or who may solicit the services of a gestational carrier … No minimum levels of

income, intelligence, age or ability are required for either the surrogate or the intended

parent(s).”77

32. In Cook, the surrogacy agency matched a 47-year-old surrogate mother with a 50-

year-old single intending father. Three embryos were transferred, leading to a triplet

pregnancy. Conflicts arose when the intending father balked at paying the costs of the high-

risk triplet pregnancy, and also demanded a reduction abortion. The surrogacy contract

contained a common provision that reduction abortion decisions would be made by the

intending parent. The surrogate mother refused the reduction abortion.78 Hence, “C.M.’s

attorney informed Cook in writing that, by refusing to reduce, she was in breach of the

contract and liable for money damages thereunder”.79 It is also argued that surrogate mothers

who refuse to submit to reduction abortions are liable for monetary damages, including “the

cost of medical treatment (for) … a resulting child.”80

33. Hence, surrogacy regulations in some jurisdictions are designed to enforce contracts,

obtain children for intending parents, maintain the industry’s profits, and intentionally reject

most protections for children or surrogate mothers. These kinds of contract-based models

lead to systemic abusive practices. Indeed, these contract-based legal regimes lead to the sale

of children, as they include the kinds of pre-birth contractual determinations of parentage that

the Committee on the Rights of the Child has warned can lead to the sale of children.81

D. International legal framework

34. It is stated in article 35 of the Convention on the Rights of the Child that: “States

Parties shall take all appropriate national, bilateral and multilateral measures to prevent the

abduction of, the sale of or traffic in children for any purpose or in any form.” The phrase

“for any purpose or in any form” is significant, and surrogacy is no exception to the article’s

prohibitions. Family formation should not be accomplished through “the abduction of, the

sale of or traffic in children”.

35. The prohibition of sale of children is clearly stated in article 1 of the Optional Protocol

to the Convention on the Rights of the Child on the sale of children, child prostitution and

child pornography. Article 2 (a) of that Optional Protocol defines sale of children as “any act

or transaction whereby a child is transferred by any person or group of persons to another for

remuneration or any other consideration”. The premise of the Convention on the Rights of

the Child and the Optional Protocol to the Convention on the Rights of the Child on the sale

of children, child prostitution and child pornography is that the sale of children is a serious

74 Federal Bureau of Investigation, “Baby-selling ring busted”. Available at

https://archives.fbi.gov/archives/sandiego/press-releases/2011/baby-selling-ring-busted.

75 Rory Devine and R. Stickney, “Convicted surrogacy attorney”. Available at

www.nbcsandiego.com/news/local/Theresa-Erickson-Surrogacy-Abuse-Selling-Babies-

140942313.html.

76 See https://www.scribd.com/document/315077548/Cook-v-Harding-Dismissal-Order.

77 Ibid., p. 6.

78 See https://www.scribd.com/document/315077548/Cook-v-Harding-Dismissal-Order; and Dov Fox,

“Surrogacy contracts, abortion conditions, and parenting licenses”, available at

http://blogs.harvard.edu/billofhealth/2016/06/07/surrogacy-contracts-abortion-conditions-and-

parenting-licenses-in-the-curious-case-of-cook-v-harding/.

79 See https://www.scribd.com/document/315077548/Cook-v-Harding-Dismissal-Order, p. 8.

80 Dov Fox, “Surrogacy contracts, abortion conditions, and parenting licenses”.

81 See CRC/C/OPSC/USA/CO/2, para. 29; CRC/C/IND/CO/3-4, para. 57 (d); CRC/C/MEX/CO/4-5,

para. 69 (b); CRC/C/OPSC/USA/CO/3-4, para. 24; and CRC/C/OPSC/ISR/CO/1, para. 28.

11

harm and human rights violation in and of itself, without having to prove any other rights

violation under the Convention such as sexual or labour exploitation.82

36. The Hague Convention on Protection of Children and Cooperation in respect of

Intercountry Adoption, of 1993, confirms that the prohibitions of article 35 of the Convention

on the Rights of the Child and article 1 of the Optional Protocol to the Convention on the

Rights of the Child on the sale of children, child prostitution and child pornography apply to

methods of family formation (such as intercountry adoption), stating in its article 1: “The

objects of the present Convention are … to establish a system of cooperation amongst

Contracting States to ensure that those safeguards are respected and thereby prevent the

abduction, the sale of, or traffic in children.”

37. The Convention on the Rights of the Child assumes a permissible diversity of State

policies on both domestic and intercountry adoption. Hence, some States view both domestic

and intercountry adoption as positive methods of family formation, while other States do not

provide in their national law for one or both.83 The Hague Convention on Protection of

Children and Cooperation in respect of Intercountry Adoption, of 1993, makes it clear that

regardless of those policy differences, States must create safeguards to prevent the abduction

of, the sale of or traffic in children from being used as a means of family formation. This

principle also applies to surrogacy. In that respect, the Committee on the Rights of the Child

has been consistent in its review of States that are affected by surrogacy, stating that if not

properly regulated, surrogacy can constitute sale of children.84 Thus, States, regardless of

their perspectives on surrogacy, must prohibit, and create safeguards to prevent, the

abduction of, the sale of or traffic in children in the context of surrogacy.

E. Defining commercial surrogacy

38. One definition of commercial surrogacy, also known as “for-profit” or “compensated”

surrogacy, focuses on the contractual and transactional — rather than gratuitous —

relationship between the intending parent(s) and the surrogate mother. Hence, commercial

surrogacy exists where the surrogate mother agrees to provide gestational services and/or to

legally and physically transfer the child, in exchange for remuneration or other consideration.

39. Commercial surrogacy also includes “reimbursement” that goes beyond reasonable

and itemized expenses incurred as a direct result of the surrogacy arrangement. 85 The

inference is that payments for unreasonable or non-itemized “expenses” are disguised

payment for gestational services and/or transfer of the child.

40. The involvement of for-profit intermediaries is another indication of commercial

surrogacy. For the purpose of the present report, intermediaries are defined as parties (persons

or organizations/institutions) that bring together intending parents and surrogate mothers,

and/or mediate the ongoing surrogacy arrangement — including medical clinics, medical

professionals, attorneys, surrogacy agencies or “brokers”. Medical professionals or clinics,

and attorneys, receiving reasonable compensation for the professional services necessary to

surrogacy, are not necessarily intermediaries, if they do not perform these functions of

establishing and mediating the relationship between the intending parents and the surrogate

mother. This supplementary definition of commercial surrogacy is necessary because

intermediaries often receive the largest profits and create large-scale national and

transnational surrogacy markets and networks.

82 John W. Tobin, “To prohibit or permit: what is the (human) rights response to the practice of

international commercial surrogacy?” International and Comparative Law Quarterly, vol. 63, No. 2

(2014), University of Melbourne Legal Studies research paper No. 689, pp. 18–21 and 24–27,

available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476751.

83 See 1993 Hague Convention, art. 21; and Child Adoption: Trends and Policies, United Nations

publication, available at www.un.org/esa/population/publications/adoption2010/child_adoption.pdf.

84 See CRC/C/OPSC/USA/CO/2, para. 29; CRC/C/IND/CO/3-4, para. 57 (d); CRC/C/MEX/CO/4-5,

para. 69 (b); CRC/C/OPSC/USA/CO/3-4, para. 24; and CRC/C/OPSC/ISR/CO/1, para. 28.

85 See HCCH, “A preliminary report on the issues arising from international surrogacy arrangements”.

12

F. Surrogacy and sale of children

41. Commercial surrogacy as currently practised usually constitutes sale of children as

defined under international human rights law. As will be described in section IV below,

commercial surrogacy may not constitute sale of children if it is closely regulated in

compliance with international human rights norms and standards, and in a manner contrary

to what exists in many commercial surrogacy regimes. Altruistic surrogacy, too, must be

appropriately regulated to avoid the sale of children (see section III (G) (8) below).

42. Under article 2 (a) of the Optional Protocol to the Convention on the Rights of the

Child on the sale of children, child prostitution and child pornography, surrogacy

arrangements constitute sale of children whenever the surrogate mother or a third party

receives “remuneration or any other consideration” in exchange for transferring the child.

There are three elements in the definition of sale of children: (a) “remuneration or any other

consideration” (payment); (b) transfer of a child (transfer); and (c) the exchange of “(a)” for

“(b)” (payment for transfer).

1. First element: remuneration or any other consideration (payment)

43. The receipt or promise of “remuneration or any other consideration” (payment) occurs

by definition in all commercial surrogacy arrangements. A promise of future payment would

constitute “other consideration”, and hence the element is established even before payments

are made. The question of payment in altruistic surrogacy is addressed in section III (G) (8)

below.

2. Second element: the transfer of a child (transfer)

44. Transferring a child entails either a legal transfer of the child or physically transferring

the child. Legal transfer of the child would include transfer of parentage or parental

responsibility.86 Physical transfer of the child would include the act of one person or group

of persons physically turning a child over to another person or group of persons. Physical

transfer of the child does not require a legal transfer. The concept of sale of children does not

require the transferor to have parentage or legal parental responsibility. A trafficker illicitly

sells a child by physically transferring a child in exchange for “remuneration or any other

consideration”, even though his or her control of the child is illegal.

45. Legal transfer of a child occurs or is promised in surrogacy arrangements. Women

who give birth are generally accorded parentage and parental responsibility at birth under the

national law of all States. Indeed, this is a requirement under the Hague Convention on

Protection of Children and Cooperation in respect of Intercountry Adoption, of 1993, even

in instances where an intercountry adoption is planned.87 The surrogate mother’s status as a

parent at birth is generally recognized in traditional surrogacy arrangements, as the surrogate

mother is both the genetic and the gestational mother. Hence, a transfer is necessary for the

intending parents to attain parentage.

46. The situation is more complicated as regards gestational surrogacy. Since there is no

jurisdiction which generally requires women who give birth to prove a genetic connection to

establish parentage, the lack of a genetic connection is not an obstacle to parentage. Indeed,

surrogacy advocates do not consider a lack of genetic connection to be a barrier to intending

parents establishing parentage, and some surrogacy regimes do not require even one

intending parent to be genetically related.88

47. Nonetheless, some surrogacy jurisdictions have created legal rules by which

gestational surrogate mothers, often relabelled “gestational carriers”, “surrogate carriers” or

“gestational surrogates”, lose parentage prior to birth, based upon a contract made prior to

86 The term “parental responsibility” is based on the Convention on the Rights of the Child (art. 18), and

includes the term “custody” used in some jurisdictions.

87 See the 1993 Hague Convention, art. 4 (c) (4).

88 See the American Bar Association report; and the California Family Code, sects. 7960–7962.

13

embryo transfer.89 Under such laws, a valid surrogacy contract effectuates the transfer of the

child either by operation of law, or else by pre- or post-birth action by a court or other

competent authority, with the court or competent authority obligated to effectuate the transfer

so long as the contract itself meets certain minimum standards.90 Hence, it is the surrogacy

contract, rather than merely being genetically unrelated, that for these surrogacy jurisdictions

renders the surrogate mother an unrelated “gestational carrier”.91 Under those circumstances,

the surrogacy contract itself includes a legal transfer of parentage, or at least a pivotal and

irreversible step toward such. The surrogate mother, in signing a surrogacy contract, is

participating in a legal transfer of the child. Thus, in Johnson v. Calvert, the Supreme Court

of California specifically referred to the surrogate mother “contracting away any rights to the

child”.92

48. In addition, surrogacy contracts, explicitly or implicitly, include an undertaking by

the surrogate mother to cooperate with legal proceedings which ensure that she and her

spouse (if applicable) terminate parentage and parental responsibility, and that parentage and

parental responsibility legally reside with the intending parents.93 In some jurisdictions, the

transfer is done prior to the birth, based on the actions of courts or other competent authorities

approving the surrogacy arrangement.94 Once again, the surrogate mother’s pre-birth actions

facilitate the vesting of parentage in the intending parents. Therefore, surrogacy arrangements

typically include a promised or actual legal transfer of a child. Legal systems which

accomplish the transfer prior to birth do not alter the existence of a legal transfer.

49. Surrogacy arrangements also include a promised or actual physical transfer of the

child from the surrogate mother to the intending parent(s). Indeed, some surrogacy contracts

seek to contractually or physically restrict the surrogate mother’s freedom of movement in

order to ensure control by the intending parent(s) over the child at birth.95 Explicitly or

implicitly, the surrogate mother is promising in surrogacy arrangements to physically transfer

the resulting child to the intending parent(s).

3. Third element: the exchange (payment for transfer)

50. The third and final required element in sale of children is the term “for”, which refers

to an exchange: the “remuneration or any other consideration” (payment) must be made “for”

the transfer of the child.

51. Commercial surrogacy arrangements typically include this element of an exchange

between the payment and the transfer. In commercial surrogacy arrangements, the promised

and actual transfer of the child is usually of the essence of the arrangement and accompanying

agreements and contracts, without which payments would be neither made nor promised. If

a surrogate mother underwent becoming pregnant, pregnancy, and giving birth, she would

not be deemed to have fulfilled her promises and contractual obligations if she refused to

participate in the legal and physical transfer of the child to the intending parent(s). While the

surrogate mother is paid, in commercial or compensated surrogacy arrangements, for the

services of gestating and giving birth to a child, she is also being paid for the transfer of the

child. Commercial surrogacy legislation and practice which mandate the enforcement of the

surrogacy contract, including specifically the transfer of parentage and parental

responsibility,96 make it even clearer that the transfer is of the essence of the contract and is

a part of the consideration for which the surrogate mother is paid. Thus, under current

practice, the third element of an exchange is met in most commercial surrogacy

arrangements.

89 See Joslin, pp. 3–6 (in the United States: California, Maine and New Hampshire).

90 Ibid.

91 Ibid.

92 851 P.2d (1993), p. 776 and pp. 781–782.

93 Ibid., p. 778.

94 See Joslin.

95 Deborah Forman, “Abortion clauses in surrogacy contracts”, Family Law Quarterly, vol. 49 (2015),

p. 29; and see https://www.pri.org/stories/2011-03-18/underworld-upending-asian-baby-farm.

96 See Joslin, pp. 3–4.

14

G. Sale of children in particular contexts

1. Sale of children and time of contracting

52. In California, commercial surrogacy contracts created during pregnancy are viewed

as sale of children, but commercial surrogacy contracts signed before embryo transfer are

not.97

53. If the distinction is based on the theory that a human being who does not exist, or over

whom there is not yet custody, cannot be sold, under such a theory babies could legally be

sold for adoption so long as the contract or relinquishment was signed before the pregnancy,

leading to legalization of baby-farming schemes. In the commercial world, pre-production

orders of goods are common; carrying such practices into the procurement of human beings

is in clear breach of the Optional Protocol to the Convention on the Rights of the Child on

the sale of children, child prostitution and child pornography. Indeed, in a renowned

surrogacy case, the creation of the surrogacy contract prior to conception was viewed as

indicating a violation of a local law prohibition of the sale of children.98

2. Sale of children and parentage at birth

54. In some jurisdictions, the law defines a genetically unrelated surrogate mother as a

mere “gestational carrier”. If a valid pre-embryo transfer contract is entered into, the law

regards the “gestational carrier” as not being the mother of the child at birth. Pre-birth

procedures are implemented such that the contractual intending parent(s) are listed as the

only parent(s) on the original birth document, regardless of whether or not the intending

parent(s) are genetically related to the child. Proponents of this kind of approach contend that

no sale of children occurs in this legal context, even where commercial surrogacy is

concerned, because the “gestational carrier” cannot transfer a child that has never been hers.99

The prior claim, analysed in section III (G) (1) above, that the time of contracting avoids the

prohibition of sale of children, is often used in tandem with this argument.

55. This perspective relies on the controversial premise that a woman who gestates and

gives birth to a child is no more of a mother than a childcare worker is.100 Such perspectives

also rely on the claim that the gestational surrogate mother is never a mother because she is

genetically unrelated, which is contradictory to the practice of providing parentage to

genetically unrelated intending parents.101

56. However, even if one were to accept such controversial premises and inconsistencies,

in some commercial surrogacy jurisdictions it is the surrogacy contract that is primarily

determinative as to parentage.102 Hence, the gestational surrogacy contract explicitly and

implicitly includes a transfer of parentage, and that transfer is usually a central part of the

legal consideration for which the gestational surrogate is paid. Furthermore, the surrogate

mother is also paid to give birth in a place accessible to the intending parents, and to

physically hand over the child after birth; as stated above, under the Optional Protocol to the

Convention on the Rights of the Child on the sale of children, child prostitution and child

pornography a transfer can exist even if the transferor lacks parentage or parental

responsibility.

57. The legal fiction of the “never-a-mother” gestational carrier is a legal concept which

is used to justify denial of the surrogate mother’s rights. Once the surrogate mother is

reduced, during pregnancy, to a never-a-mother gestational carrier acting for the benefit of

intending parents, the door is open to enforcing contracts that purport to alienate her rights

and freedoms (e.g. the right to health and the right to freedom of movement).103

97 See footnotes 74–76 above.

98 Baby M., 537 A.2d, p. 1227 (pinpoint: p. 1240) (Supreme Court of New Jersey, 1988).

99 See Joslin; and Smolin, pp. 311–315.

100 Steven Snyder, “Reproductive surrogacy in the United States of America”, Handbook of Gestational

Surrogacy (2016), pp. 276–278.

101 American Bar Association report, pp. 1, 5, 15 and 17.

102 See Joslin; and Johnson v. Calvert.

103 See Joslin; and New Hampshire Revised Statutes Annotated, sects. 168-B:10, B:11 and B:12 (2014).

15

3. Sale of children and exclusive parentage

58. Some claim that intending parents cannot buy “their own” children. However,

intending parent(s) at a minimum are paying for exclusivity, so that they will not have to

share parentage and parental responsibility with the surrogate mother. In order to achieve this

exclusivity, intending parent(s) pay the surrogate mother to release and transfer legal

parentage and parental responsibility, as well as to physically transfer the child.

59. The premise that the child is automatically the child of the intending parent(s) is also

flawed. It is often the contract or the arrangement that is the basis for parentage in commercial

surrogacy jurisdictions, and the contract explicitly or implicitly includes a transfer, as noted

in section III (F) above.

4. Sale of children and the sale of services

60. Some argue that commercial surrogacy is merely the sale of gestational “services” and

not the sale of children. Even though commercial surrogacy includes the sale of gestational

services, as the surrogate mother agrees to undergo artificial insemination or embryo transfer,

to gestate and to give birth to the child, commercial surrogacy as it is usually practised also

includes payment for the legal and physical transfer of the child. In general, the provisions

relating to the transfer of the child are of the essence of the agreement, without which the

intending parents would neither enter into the agreement nor pay the surrogate mother.

Hence, although commercial surrogacy includes the sale of services, it also usually includes

the sale of the child.

61. Some try to evade the prohibition on sale of children by inserting into surrogacy

agreements a provision stating, in substance, that the parties agree that all payments are for

services and none are for the transfer or sale of the child. However, the prohibition on sale of

children cannot be avoided by contracts arbitrarily relabelling the sale of children as

something else, when in substance the arrangement includes the sale of children.

5. Sale of children and intermediaries

62. Intermediaries are often responsible for creating and participating in surrogacy

markets, and often receive the largest profits. Where the interactions between the intending

parent(s) and the surrogate mother constitute sale of children, intermediaries would normally

be complicit, and hence legally responsible, given their intermediary role in establishing and

mediating the relationship between the intending parent(s) and the surrogate mother.

Prosecutions for sale of children in the context of surrogacy should focus primarily on

intermediaries, and, absent exceptional circumstances, they should not include surrogate

mothers, who may often be regarded as exploited victims.

63. Intermediaries who physically or legally transfer the child to intending parents in

exchange for “remuneration or any other consideration” are directly liable for the sale of the

child. Some intermediaries exercise extraordinary physical or legal control over the surrogate

mother, and exercise direct control over the surrogate-born child. In such instances, the

intermediary may be primarily responsible for the transfer of the child, and thus may be

directly liable in appropriate cases for the sale of the child.

6. Sale of children and the rejection of a “right to a child”

64. International and regional human rights instruments protect the right to “found a

family” or the right to “respect for … private and family life.”104 The language of a “right to

procreate” is used in some national legal systems, though this terminology is not found in

international human rights instruments. On bases such as these, it is sometimes argued that

all adults are entitled to create a family and raise children. However, it is recognized that

there is no “right to a child” under international law.105 A child is not a good or service that

the State can guarantee or provide, but rather a rights-bearing human being. Hence, providing

104 See, for example, the International Covenant on Civil and Political Rights, art. 23 (2); the European

Convention on Human Rights, art. 8; and the American Convention on Human Rights, art. 17 (2).

105 See, for example, Saclier, “Children and adoption”, pp. 12–13; and Van Bueren, The International

Law on the Rights of the Child.

16

a “right to a child” would be a fundamental denial of the equal human rights of the child. The

“right to a child” approach must be resisted vigorously, for it undermines the fundamental

premise of children as persons with human rights.

65. In general, advocates for commercial surrogacy are not asking the State to grant them

“privacy” in the sense of leaving them alone to conduct their private and family life without

State interference. On the contrary, commercial surrogacy advocates seek to enlist the State

in enforcing surrogacy contracts in ways that strip children of rights to best interests

protections, and rights to identity and access to origins, while simultaneously stripping

surrogate mothers of parentage status and autonomy over health-care decisions. Commercial

surrogacy advocates seek and sometimes obtain legislation that empowers intermediaries and

intending parents at the expense of children and surrogate mothers.106 Furthermore, the

complex networks of contracts and highly paid intermediaries and the financial transactions

typically involved in commercial surrogacy arrangements are not the sorts of matters viewed

as immune from regulation.

7. Sale of children and the role of regulation

66. Some may agree that unregulated surrogacy can lead to the sale of children, but argue

that well-regulated commercial surrogacy systems will not. Similarly, some may suggest that

purportedly well-regulated commercial surrogacy systems in developed countries avoid the

sale of children, even if international commercial surrogacy systems operating in developing

countries often do not.107

67. It is accurate that unregulated commercial surrogacy systems often involve the sale of

children, and are subject to abusive practices and rights violations. Thus, the Committee on

the Rights of the Child has specifically warned that surrogacy, “if not clearly regulated,

amounts to sale of children”.108

68. However, it is not accurate that regulated commercial surrogacy systems avoid the

sale of children. Thus, in 2017, the Committee on the Rights of the Child stated, in regard to

the United States, that it was “nevertheless concerned that widespread commercial use of

surrogacy in the State party may lead … to the sale of children. The Committee is particularly

concerned about the situations when parentage issues are decided exclusively on a contractual

basis at pre-conception or pre-birth stage.”109 The Committee’s concern is directly applicable

to regulated commercial surrogacy jurisdictions in the United States, which generally have

enacted legislation making commercial surrogacy contracts enforceable and determinative as

to parentage.110

8. Sale of children and altruistic surrogacy

69. In theory, a truly “altruistic” surrogacy does not constitute sale of children, since

altruistic surrogacy is understood as a gratuitous act, often between family members or

friends with pre-existing relationships, and often without the involvement of intermediaries.

Hence, in theory, altruistic surrogacy is not an exchange of payment for services and/or

transfer of a child based on a contractual relationship. However, the development of

organized surrogacy systems labelled “altruistic”, which often involve substantial

reimbursements to surrogate mothers and substantial payments to intermediaries, may blur

the line between commercial and altruistic surrogacy. Therefore, labelling surrogacy

arrangements or surrogacy systems as “altruistic” does not automatically avoid the reach of

the Optional Protocol to the Convention on the Rights of the Child on the sale of children,

child prostitution and child pornography, and it is necessary to appropriately regulate

altruistic surrogacy to avoid the sale of children. Courts or other competent authorities must

require all “reimbursements” to surrogate mothers to be reasonable and itemized, as

otherwise “reimbursements” may be disguised payments for transfer of the child. Payments

106 See footnotes 47–60 and 75–80 above.

107 See, for example, Snyder, p. 284.

108 See CRC/C/OPSC/USA/CO/2, para. 29; CRC/C/IND/CO/3-4, para. 57 (d); CRC/C/MEX/CO/4-5,

para. 69 (b); CRC/C/OPSC/USA/CO/3-4, para. 24; and CRC/C/OPSC/ISR/CO/1, para. 28.

109 Ibid.

110 See Joslin.

17

to intermediaries, whether for-profit or not-for-profit, may be considered an indication of

commercial surrogacy, and should be reasonable and itemized. There is particular risk when

significant reimbursements or payments are made using open-ended categories such as “pain

and suffering” or “professional services”.

9. Sale of children and recognition of foreign surrogacies

70. States that prohibit all surrogacies, or commercial surrogacies, often face a situation

where their nationals evade their laws by conducting a surrogacy abroad and then seek to

bring the child home. Cross-border surrogacies are mostly commercial surrogacies mediated

by for-profit intermediaries, and are usually conducted in jurisdictions that permit

commercial surrogacy. The State of the intending parents should not assume that such

surrogacies are altruistic. Given the risk of sale of children in both regulated and unregulated

commercial surrogacies, States generally should not automatically recognize parentage

orders or birth records from foreign States in respect of commercial surrogacies, but should

review carefully the proceedings abroad. The State of the intending parents is responsible for

conducting post-birth best interests determinations, protecting the child’s identity rights and

access to origins, and making independent assessments as to parentage, and also for inquiring

into the treatment and post-birth consent of the surrogate mother. The State of the intending

parents should only grant parentage and parental responsibility to intending parents after such

evaluations, based on the best interests of the child. The child must not be punished or

discriminated against due to the circumstances of his or her birth, and the rights of surrogate-

born children must be protected.111 The States concerned, namely the State(s) of the intending

parents and the State in which the child is born, are responsible for ensuring that statelessness

does not occur.

10. Sale of children and post-birth relinquishments

71. The requirement that the surrogate mother have non-exclusive parentage and parental

responsibility at birth is necessitated by the norm against sale of children, and protects the

rights of the surrogate mother. Nonetheless, where the surrogate mother, after the birth, does

not wish to retain parentage or parental responsibility, the best interests of the child require

that there be a legal mechanism for transfer of the child. All States are responsible for

establishing such a mechanism in surrogacy arrangements, for the post-birth transfer of the

child, even if they otherwise do not permit parents to relinquish children or transfer parentage.

IV. Conclusions and recommendations

A. Conclusions

72. Commercial surrogacy could be conducted in a way that does not constitute sale

of children, if it were clear that the surrogate mother was only being paid for gestational

services and not for the transfer of the child. In order to turn this into more than a legal

fiction, the following conditions would all be necessary. First, the surrogate mother

must be accorded the status of mother at birth, and at birth must be under no

contractual or legal obligation to participate in the legal or physical transfer of the child.

Hence, the surrogate mother would be viewed as having satisfied any contractual or

legal obligations through the acts of gestation and childbirth, even if she maintains

parentage and parental responsibility. Second, all payments must be made to the

surrogate mother prior to the post-birth legal or physical transfer of the child, and all

payments made must be non-reimbursable, even if the surrogate mother chooses to

maintain parentage and parental responsibility, and these conditions should be

expressly stipulated in the contract. If the surrogate mother chose to maintain

parentage and parental responsibility, she may be legally obligated to share parentage

and parental responsibility with others, including the intending parent(s). However, the

surrogate mother would not be obligated to relinquish her own status by the surrogacy

arrangement. Any choice by the surrogate mother after the birth to legally and

111 See the cases cited in footnote 32 above.

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physically transfer the child to the intending parent(s) must be a gratuitous act, based

on her own post-birth intentions, rather than on any legal or contractual obligation.

73. A properly regulated system of commercial surrogacy would also provide

necessary protections for children, including post-birth individualized best interests of

the child determinations, appropriate suitability reviews of intending parents, and

protections of rights of origin and access to identity. For the protection of all parties, it

is appropriate to conduct screenings and reviews of surrogacy arrangements prior to

pregnancy, but pre-birth processes cannot be conclusive as to parentage and parental

responsibility, which can only be determined upon appropriate review after the birth.

Similarly, appropriate protections of surrogate mothers, consistent with retaining the

status of mother at birth, would include retention of rights of informed consent in

regard to all health-care decisions, and freedom of movement and travel — including

the principle that such rights cannot be alienated by contract. Appropriate regulation

of the financial and medical aspects of surrogacy, and strict regulation of

intermediaries, would also be necessary.

74. Commercial surrogacy is currently practised in jurisdictions where even

genetically unrelated surrogate mothers retain parentage at birth (e.g. the Russian

Federation).112 In addition, surrogacy practitioners claim that in some jurisdictions

lacking surrogacy laws they practise commercial surrogacy relying on pre-existing

rules related to parentage, termination of parental rights, and adoption, resulting in

post-birth voluntary transfers by the surrogate mother to the intending parent(s) and

post-birth parentage orders.113 In addition, commercial surrogacy advocates claim that

relatively few surrogate mothers change their mind and seek to retain parentage and

parental responsibility after birth, making the risks to intending parents of surrogate

mothers retaining parentage at birth rather limited. Indeed, a prominent commercial

surrogacy attorney found that intending parents changed their minds significantly

more often than surrogate mothers.114 Thus, current practice indicates that commercial

surrogacy can be practised under legal regimes that retain the traditional rule that the

woman who gives birth is the mother at birth, and which implement appropriate post-

birth procedures for transfer. Certainly, practising commercial surrogacy in

unregulated environments remains highly risky and is not recommended.

75. In order to fulfil their obligation to prohibit, and create safeguards to prevent,

the sale of children in the context of surrogacy, States should prohibit commercial

surrogacy until and unless a proper regulatory system, which includes a clear and

comprehensive legal framework, is put in place as described above. Such an approach

responds to the premise that the transfer of the child is of the essence of the commercial

surrogacy arrangement and therefore is a part of the consideration for the payment to

the surrogate mother. It is possible for States to strictly regulate and permit commercial

surrogacy without involvement in the sale of children, if they clearly enact, and enforce

effectively, regulations as indicated in the present conclusions and recommendations.

States should not adopt commercial surrogacy regulations based on obligatory or

automatic enforcement of surrogacy contracts and accompanying pre-birth parentage

orders, for such would make the States complicit in authorizing practices that constitute

the sale of children.

76. Similarly, as regards altruistic surrogacy, where permitted, States should

appropriately regulate the practice to prevent the sale of children and respect the

international prohibition in that regard, for example by requiring that all

reimbursements and payments to surrogate mothers and intermediaries are reasonable

and itemized and are subject to review by courts or other competent authorities.

112 See Trimmings and Beaumont, pp. 313–319; and European Parliament, “A comparative study on the

regime of surrogacy in EU member States”, pp. 333–338.

113 See Trimmings and Beaumont, pp. 391–392.

114 See https://www.nytimes.com/2014/07/06/us/foreign-couples-heading-to-america-for-surrogate-

pregnancies.html.

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B. Recommendations

1. At the national level

77. The Special Rapporteur invites all States to:

(a) Ratify the Convention on the Rights of the Child and its three Optional

Protocols;

(b) 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;

(c) 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;

(d) 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);

(e) 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;

(f) Ensure that in all parentage and parental responsibility decisions

involving a surrogacy arrangement, a court or competent authority conducts an

appropriate and non-discriminatory suitability review of the intending parent(s), either

prior to or after the birth or both;

(g) 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;

(h) Regulate all intermediaries involved in surrogacy arrangements, in

regard to the financial aspects, relevant competencies, use of contractual arrangements,

and ethical standards;

(i) Regulate the medical aspects of surrogacy arrangements to ensure the

health and safety of the surrogate mother and child, including by placing appropriate

limits on the number of embryos transferred to a woman at one time;

(j) 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;

(k) Focus any criminal or civil penalties for illegal surrogacy arrangements

primarily upon the intermediaries;

(l) Collect, analyse and share comprehensive and reliable data, and conduct

qualitative and quantitative research studies, on surrogacy arrangements and their

impact on human rights, to ensure that accurate information is available, and facilitate

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the monitoring and evaluation of surrogacy systems, services and outcomes in order to

develop appropriate human rights-compliant measures.

2. At the international level

78. The Special Rapporteur invites the international community to:

(a) Support the work of the Hague Conference on Private International Law,

in particular in relation to its study of private international law issues related to the

legal parentage of children, including in the context of international surrogacy

arrangements;

(b) 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;

(c) Ensure that any international regulation addressing recognition of

parentage in international surrogacy arrangements, or addressing recognition of

foreign judicial decisions on parentage, or other foreign determinations on parentage,

also includes appropriate public policy exceptions barring recognition where the

foreign legal system does not adequately protect the rights of the child or the surrogate

mother, and provide appropriate post-birth review in cross-border commercial

surrogacies in order to prevent the sale of children;

(d) Support the work of the International Social Service in developing

international principles and standards governing surrogacy arrangements that are in

accordance with human rights norms and standards and particularly with the rights of

the child;

(e) Work cooperatively to ensure the protection of the rights of surrogate-

born children, regardless of the legal status of the surrogacy arrangement under

national or international law, which should include protection of the best interests of

the child and prevention of statelessness;

(f) 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.