A/HRC/37/60 physically transfer the child to the intending parent(s) must be a gratuitous act, based on her own post-birth intentions, rather than on any legal or contractual obligation. 73. A properly regulated system of commercial surrogacy would also provide necessary protections for children, including post-birth individualized best interests of the child determinations, appropriate suitability reviews of intending parents, and protections of rights of origin and access to identity. For the protection of all parties, it is appropriate to conduct screenings and reviews of surrogacy arrangements prior to pregnancy, but pre-birth processes cannot be conclusive as to parentage and parental responsibility, which can only be determined upon appropriate review after the birth. Similarly, appropriate protections of surrogate mothers, consistent with retaining the status of mother at birth, would include retention of rights of informed consent in regard to all health-care decisions, and freedom of movement and travel — including the principle that such rights cannot be alienated by contract. Appropriate regulation of the financial and medical aspects of surrogacy, and strict regulation of intermediaries, would also be necessary. 74. Commercial surrogacy is currently practised in jurisdictions where even genetically unrelated surrogate mothers retain parentage at birth (e.g. the Russian Federation). 112 In addition, surrogacy practitioners claim that in some jurisdictions lacking surrogacy laws they practise commercial surrogacy relying on pre-existing rules related to parentage, termination of parental rights, and adoption, resulting in post-birth voluntary transfers by the surrogate mother to the intending parent(s) and post-birth parentage orders.113 In addition, commercial surrogacy advocates claim that relatively few surrogate mothers change their mind and seek to retain parentage and parental responsibility after birth, making the risks to intending parents of surrogate mothers retaining parentage at birth rather limited. Indeed, a prominent commercial surrogacy attorney found that intending parents changed their minds significantly more often than surrogate mothers.114 Thus, current practice indicates that commercial surrogacy can be practised under legal regimes that retain the traditional rule that the woman who gives birth is the mother at birth, and which implement appropriate postbirth procedures for transfer. Certainly, practising commercial surrogacy in unregulated environments remains highly risky and is not recommended. 75. In order to fulfil their obligation to prohibit, and create safeguards to prevent, the sale of children in the context of surrogacy, States should prohibit commercial surrogacy until and unless a proper regulatory system, which includes a clear and comprehensive legal framework, is put in place as described above. Such an approach responds to the premise that the transfer of the child is of the essence of the commercial surrogacy arrangement and therefore is a part of the consideration for the payment to the surrogate mother. It is possible for States to strictly regulate and permit commercial surrogacy without involvement in the sale of children, if they clearly enact, and enforce effectively, regulations as indicated in the present conclusions and recommendations. States should not adopt commercial surrogacy regulations based on obligatory or automatic enforcement of surrogacy contracts and accompanying pre-birth parentage orders, for such would make the States complicit in authorizing practices that constitute the sale of children. 76. Similarly, as regards altruistic surrogacy, where permitted, States should appropriately regulate the practice to prevent the sale of children and respect the international prohibition in that regard, for example by requiring that all reimbursements and payments to surrogate mothers and intermediaries are reasonable and itemized and are subject to review by courts or other competent authorities. 112 113 114 18 See Trimmings and Beaumont, pp. 313–319; and European Parliament, “A comparative study on the regime of surrogacy in EU member States”, pp. 333–338. See Trimmings and Beaumont, pp. 391–392. See https://www.nytimes.com/2014/07/06/us/foreign-couples-heading-to-america-for-surrogatepregnancies.html.