A/HRC/37/60 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 87 88 12 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. See the 1993 Hague Convention, art. 4 (c) (4). See the American Bar Association report; and the California Family Code, sects. 7960–7962.