A/HRC/37/60 embryo transfer.89 Under such laws, a valid surrogacy contract effectuates the transfer of the child either by operation of law, or else by pre- or post-birth action by a court or other competent authority, with the court or competent authority obligated to effectuate the transfer so long as the contract itself meets certain minimum standards.90 Hence, it is the surrogacy contract, rather than merely being genetically unrelated, that for these surrogacy jurisdictions renders the surrogate mother an unrelated “gestational carrier”.91 Under those circumstances, the surrogacy contract itself includes a legal transfer of parentage, or at least a pivotal and irreversible step toward such. The surrogate mother, in signing a surrogacy contract, is participating in a legal transfer of the child. Thus, in Johnson v. Calvert, the Supreme Court of California specifically referred to the surrogate mother “contracting away any rights to the child”.92 48. In addition, surrogacy contracts, explicitly or implicitly, include an undertaking by the surrogate mother to cooperate with legal proceedings which ensure that she and her spouse (if applicable) terminate parentage and parental responsibility, and that parentage and parental responsibility legally reside with the intending parents.93 In some jurisdictions, the transfer is done prior to the birth, based on the actions of courts or other competent authorities approving the surrogacy arrangement.94 Once again, the surrogate mother’s pre-birth actions facilitate the vesting of parentage in the intending parents. Therefore, surrogacy arrangements typically include a promised or actual legal transfer of a child. Legal systems which accomplish the transfer prior to birth do not alter the existence of a legal transfer. 49. Surrogacy arrangements also include a promised or actual physical transfer of the child from the surrogate mother to the intending parent(s). Indeed, some surrogacy contracts seek to contractually or physically restrict the surrogate mother’s freedom of movement in order to ensure control by the intending parent(s) over the child at birth. 95 Explicitly or implicitly, the surrogate mother is promising in surrogacy arrangements to physically transfer the resulting child to the intending parent(s). 3. Third element: the exchange (payment for transfer) 50. The third and final required element in sale of children is the term “for”, which refers to an exchange: the “remuneration or any other consideration” (payment) must be made “for” the transfer of the child. 51. Commercial surrogacy arrangements typically include this element of an exchange between the payment and the transfer. In commercial surrogacy arrangements, the promised and actual transfer of the child is usually of the essence of the arrangement and accompanying agreements and contracts, without which payments would be neither made nor promised. If a surrogate mother underwent becoming pregnant, pregnancy, and giving birth, she would not be deemed to have fulfilled her promises and contractual obligations if she refused to participate in the legal and physical transfer of the child to the intending parent(s). While the surrogate mother is paid, in commercial or compensated surrogacy arrangements, for the services of gestating and giving birth to a child, she is also being paid for the transfer of the child. Commercial surrogacy legislation and practice which mandate the enforcement of the surrogacy contract, including specifically the transfer of parentage and parental responsibility,96 make it even clearer that the transfer is of the essence of the contract and is a part of the consideration for which the surrogate mother is paid. Thus, under current practice, the third element of an exchange is met in most commercial surrogacy arrangements. 89 90 91 92 93 94 95 96 See Joslin, pp. 3–6 (in the United States: California, Maine and New Hampshire). Ibid. Ibid. 851 P.2d (1993), p. 776 and pp. 781–782. Ibid., p. 778. See Joslin. Deborah Forman, “Abortion clauses in surrogacy contracts”, Family Law Quarterly, vol. 49 (2015), p. 29; and see https://www.pri.org/stories/2011-03-18/underworld-upending-asian-baby-farm. See Joslin, pp. 3–4. 13