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.
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