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Commercial surrogacy is in senior UN official's firing line

10 June 2019
By Sam Everingham
Founder, Families Through Surrogacy
Appeared in BioNews 1001

The question of whether the UN will develop an international treaty relating to surrogacy arrangements – as it did a quarter of a century ago in relation to adoption – is up for discussion.

As inter-country adoptions have been subject to international standards since 1993, they have declined sharply, particularly in the last two decades. In contrast, international surrogacy arrangements have rapidly increased.

Given this trend, Families Through Surrogacy's London seminar on 29 June will focus particularly on the rise in altruistic surrogacy for UK citizens locally and in Greece. It will also look at how the US state of Texas practises surrogacy, with talks from medical and surrogacy professionals to help navigate a changing landscape.

Maud de Boer-Buquicchio is a Dutch lawyer with a mission. As Deputy Secretary General of the Council of Europe, she spearheaded key conventions: on action against human trafficking, and on the protection of children from sexual exploitation and sexual abuse. For the past five years she has focused on children's human rights as the UN's Special Rapporteur on the sale of children, child prostitution and child pornography.  

Unlike international adoption, there is no treaty to protect the rights of children born via cross-border surrogacy. There has been a rise in operators taking advantage of the legal vacuum to offer unregulated surrogacy in countries as diverse as Malaysia, Laos, Kenya, Guatemala, Columbia and Nicaragua. Unfortunately, intermediary-managed surrogacy, whether regulated or not, can exploit the vulnerability of intended parents and surrogates alike.

De Boer-Buquicchio has presented a controversial report to the UN Human Rights Council in which she argues that under international human rights law, commercial surrogacy amounts to the sale of children. Her concern is that legislation permitting commercial surrogacy (such as that of the USA, Ukraine, Georgia and Russia) are legalising practices that violate the 1993 Hague Convention, which prioritises the best interests of the child (and obliges signatories to create safeguards to prevent the sale of children as a means of family formation). 

She has problems with US legislation in particular. In California for instance, surrogacy contracts created during pregnancy are viewed as sale of children, but contracts signed before embryo transfer are not.

Her report has suitably upset the family law section of the American Bar Association, whose assisted reproductive technologies committee believes that trying to regulate the international surrogacy market is misguided and individual countries should instead be allowed to write their own regulations.

De Boer-Buquicchio has offered a solution to the impasse, declaring that commercial surrogacy would not constitute sale of children if the surrogate was only paid for gestation and not for the transfer of the child. This would need to entail the surrogate being accorded the status of mother at birth, be under no contractual or legal obligation to give up the child and have received all compensation prior to the birth. In fact, appropriately screened surrogates rarely see themselves as the mother of the child and the clunky legal transfer of parentage post-birth can be argued to not be in the best interests of the child, given the child has no legal parent living with them for often six to 12 months after birth.

While the approach advocated by the Special Rapporteur is the way surrogacy is successfully practised in some US states, the UK, Australia and New Zealand, it is completely contra to the US model of contractual surrogacy.

The Special Rapporteur argues that until a proper regulatory system is in place internationally, states should prohibit commercial surrogacy. She will present her recommendations to the UN General Assembly in October.

As a senior official within the UN framework, de Boer-Buquicchio's views are not easily dismissed. However there are significant problems with surrogacy legislation in 'altruistic' countries such as the UK and Australia, issues which the Special Rapporteur has failed to address. The lack of professional screening and support for surrogates, infants without a legal custodial parent for many months post birth and a costly court-mandated transfer of parentage are just a few of the barriers in altruistic legislation.

Surrogacy academic Dr Kirsty Horsey convened a one day conference on 6 June at the University of Kent 'Reforming Surrogacy Laws: Future Directions and Possibilities', which focused on the much-needed altruistic surrogacy law reform in the UK. This event gave significant airtime to the lived experience of five UK surrogates and seven parents via surrogacy.

Meanwhile the American Bar Association together with the International Academy of Family Lawyers have muscled in to hold an invitation-only International Surrogacy Forum (June 27/28) on neutral territory (the UK's Cambridge Family Law Centre). It will explore the issues of international surrogacy from a practical perspective. De Boer-Buquicchio is a featured speaker, along with prominent academics from the UK, USA, Europe, South Africa, Australia and New Zealand. June promises to be a pivotal month in the future of surrogacy practice.

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