A/HRC/37/60 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 104 105 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). See, for example, Saclier, “Children and adoption”, pp. 12–13; and Van Bueren, The International Law on the Rights of the Child. 15