A/HRC/37/60 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 83 84 85 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. 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. 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. See HCCH, “A preliminary report on the issues arising from international surrogacy arrangements”. 11