A/HRC/37/60 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 106 107 108 109 110 16 See footnotes 47–60 and 75–80 above. See, for example, Snyder, p. 284. 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. Ibid. See Joslin.