A/HRC/37/60 G. Sale of children in particular contexts 1. Sale of children and time of contracting 52. In California, commercial surrogacy contracts created during pregnancy are viewed as sale of children, but commercial surrogacy contracts signed before embryo transfer are not.97 53. If the distinction is based on the theory that a human being who does not exist, or over whom there is not yet custody, cannot be sold, under such a theory babies could legally be sold for adoption so long as the contract or relinquishment was signed before the pregnancy, leading to legalization of baby-farming schemes. In the commercial world, pre-production orders of goods are common; carrying such practices into the procurement of human beings is in clear breach of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Indeed, in a renowned surrogacy case, the creation of the surrogacy contract prior to conception was viewed as indicating a violation of a local law prohibition of the sale of children.98 2. Sale of children and parentage at birth 54. In some jurisdictions, the law defines a genetically unrelated surrogate mother as a mere “gestational carrier”. If a valid pre-embryo transfer contract is entered into, the law regards the “gestational carrier” as not being the mother of the child at birth. Pre-birth procedures are implemented such that the contractual intending parent(s) are listed as the only parent(s) on the original birth document, regardless of whether or not the intending parent(s) are genetically related to the child. Proponents of this kind of approach contend that no sale of children occurs in this legal context, even where commercial surrogacy is concerned, because the “gestational carrier” cannot transfer a child that has never been hers.99 The prior claim, analysed in section III (G) (1) above, that the time of contracting avoids the prohibition of sale of children, is often used in tandem with this argument. 55. This perspective relies on the controversial premise that a woman who gestates and gives birth to a child is no more of a mother than a childcare worker is.100 Such perspectives also rely on the claim that the gestational surrogate mother is never a mother because she is genetically unrelated, which is contradictory to the practice of providing parentage to genetically unrelated intending parents.101 56. However, even if one were to accept such controversial premises and inconsistencies, in some commercial surrogacy jurisdictions it is the surrogacy contract that is primarily determinative as to parentage. 102 Hence, the gestational surrogacy contract explicitly and implicitly includes a transfer of parentage, and that transfer is usually a central part of the legal consideration for which the gestational surrogate is paid. Furthermore, the surrogate mother is also paid to give birth in a place accessible to the intending parents, and to physically hand over the child after birth; as stated above, under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography a transfer can exist even if the transferor lacks parentage or parental responsibility. 57. The legal fiction of the “never-a-mother” gestational carrier is a legal concept which is used to justify denial of the surrogate mother’s rights. Once the surrogate mother is reduced, during pregnancy, to a never-a-mother gestational carrier acting for the benefit of intending parents, the door is open to enforcing contracts that purport to alienate her rights and freedoms (e.g. the right to health and the right to freedom of movement).103 97 98 99 100 101 102 103 14 See footnotes 74–76 above. Baby M., 537 A.2d, p. 1227 (pinpoint: p. 1240) (Supreme Court of New Jersey, 1988). See Joslin; and Smolin, pp. 311–315. Steven Snyder, “Reproductive surrogacy in the United States of America”, Handbook of Gestational Surrogacy (2016), pp. 276–278. American Bar Association report, pp. 1, 5, 15 and 17. See Joslin; and Johnson v. Calvert. See Joslin; and New Hampshire Revised Statutes Annotated, sects. 168-B:10, B:11 and B:12 (2014).