A/HRC/37/60 III. Study on surrogacy and sale of children A. Objective, scope and methodology 7. The mandate of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material includes “matters relating to the sale of children”.5 The Special Rapporteur’s last two reports have addressed a “gap” that arose when inadequate attention had been given to issues beyond “the sexual exploitation of children”. 6 Hence, the Special Rapporteur’s report to the General Assembly at its seventy-first session focused on the sale of children for the purpose of forced labour7 and her report to the Human Rights Council at its thirty-fourth session focused on illegal adoptions.8 8. The present study addresses a further such “gap”, regarding the sale of children in the context of surrogacy. It is a logical follow-up to the study on illegal adoptions, wherein the Special Rapporteur already noted that “the international regulatory vacuum that persists in relation to international commercial surrogacy arrangements leaves children born through this method vulnerable to breaches of their rights, and the practice often amounts to the sale of children”.9 The Committee on the Rights of the Child has consistently expressed similar concerns that surrogacy could lead or amount to the sale of children.10 9. The present study therefore examines when surrogacy arrangements constitute the sale of children under international human rights law and as defined by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. It reviews the wide spectrum of policies on surrogacy, in a context where explicit and specific international norms are currently lacking. The study notes the presence of abusive practices in both unregulated and regulated contexts. In order to strengthen the legitimacy and viability of the fundamental norm prohibiting the sale of children, the study provides analysis and recommendations on implementing this prohibition as it relates to surrogacy. 10. “Surrogacy” refers to a form of “third party” reproductive practice in which the intending parent(s) and the surrogate mother agree that the surrogate mother will become pregnant, gestate, and give birth to a child. Surrogacy arrangements generally include an expectation or agreement that the surrogate mother will legally and physically transfer the child to the intending parent(s) without retaining parentage or parental responsibility. 11 Surrogacy generally occurs in the context of assisted reproductive technologies — such as in vitro fertilization and embryo transfer for gestational (or full) surrogacy (where the surrogate mother is genetically unrelated to the child) and artificial insemination for traditional (or partial) surrogacy (where the surrogate mother is genetically related to the child). Gametes can also be obtained, by purchase or “donation”, from additional parties who are neither the intending parent(s) nor the surrogate mother, and hence the intending parent(s) may or may not be genetically related to the child.12 11. The analysis of sale of children that is contained in the present study is applicable to both international and national surrogacy, traditional and gestational surrogacy, and commercial and altruistic surrogacy. The study concentrates on the prohibition of sale of 5 6 7 8 9 10 11 12 See Commission on Human Rights resolution 1990/68. See A/71/261, para. 15. Ibid., para. 16. See A/HRC/34/55. Ibid., para. 52. See CRC/C/OPSC/USA/CO/2, para. 29; CRC/C/IND/CO/3-4, para. 57 (d); CRC/C/MEX/CO/4-5, para. 69 (b); CRC/C/OPSC/USA/CO/3-4, para. 24; and CRC/C/OPSC/ISR/CO/1, para. 28. See the Hague Conference on Private International Law (HCCH), “A preliminary report on the issues arising from international surrogacy arrangements” (March 2012), available at https://assets.hcch.net/docs/d4ff8ecd-f747-46da-86c3-61074e9b17fe.pdf. Ibid. It would also be traditional surrogacy if in vitro fertilization and embryo transfer were used employing the surrogate mother’s eggs. 3