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.
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