A/HRC/37/60 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 39 40 41 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. See “An update on the work of the Hague Conference”, pp. 102–103 and footnotes 32–33. 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). Cf. American Bar Association, report and resolution 112B, available at https://www.americanbar.org/ content/dam/aba/uncategorized/family/Hague_Consideration.authcheckdam.pdf. 7