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Continuing issues and debate concerning transnational commercial surrogacy during the COVID-19 pandemic and beyond

30 November 2020
By Yuri Hibino, Sonia Allan, and Damian Adams
Assistant Professor of Law, Kanazawa University, Japan; Professor of Law, Western Sydney University, Australia; PhD candidate, Flinders University, Australia and donor-conceived person.
Appeared in BioNews 1074

The regulation of surrogacy varies around the world. Most countries that have laws, prohibit all forms of surrogacy, while several permit altruistic arrangements. A small number permit commercial surrogacy arrangements, and accept commissioning couples, or singles from nations where prohibitions exist. As a result, issues abound. For example, despite growing recognition that children have a right to information about their birth mother, gamete donor(s), and genetic siblings, transnational arrangements may provide little to no opportunity to build relationships when separated by language, culture, and/or location. Issues regarding the sale and commodification of children persist; cases of child abandonment are known. Trafficking of women across borders, bonded labour, health risks associated with surrogacy and egg donation, and ill-treatment of surrogates and intending mothers reported. 

In 2020, COVID-19 also saw up to 1000 babies left in hospitals (or orphanages) in Russia, with intending parents unable to travel. In the Ukraine, babies were cared for in hotel rooms by nurses or nannies, or placed into public care (see BioNews 1048). Some surrogates struggled as they bonded with the baby or worried about the costs of care. 

Questions remain about what should be done. 

Call by donor-conceived and surrogacy-born people to end transnational practices

In November 2019, following a presentation to the UN for the 30th Anniversary of the Convention of the Rights of the Child, a group of donor-conceived and surrogacy-born people from around the globe drafted the 'International Principles for Donor Conception and Surrogacy'. The Principles call for the best interests and human rights of children to be paramount in laws, policies and practices concerning surrogacy and donor-conception, for their right to identity via truthful birth records and access to information, and for their right to maintain relations with surrogates and genetic relatives. They also call for prohibition of commercial surrogacy and paid gamete donation, to end to the sale and commodification of children. Where countries choose to permit surrogacy, the Principles propose that only residents should have access.

The International Principles for Donor Conception and Surrogacy also provide that children should share their surrogate's nationality to avoid statelessness and that pre- and post- birth assessment of all parties must occur prior to any transfer of legal parentage. Most importantly they call for consultation with donor-conceived and surrogacy-born people when developing laws or policies and practices, as they have first-hand experience of how such arrangements impact lives. 

The Principles were circulated as a petition in early 2020 garnering close to 1300 signatures and presented to the UN Committee on the Rights of the Child, the Hague Conference on Private International Law (HCCH), governments and agencies. 

The HCCH ‘Parentage/Surrogacy Project'

Despite the above, in 2020, the Hague Conference advanced its work on what it refers to as a Parentage/Surrogacy Project by drafting several alternatives for a draft convention or protocol that will facilitate the transfer of legal parentage in transnational surrogacy arrangements. A group of 'experts' (predominantly academics who focus on private international law and lawyers) from approximately a third of the Hague Conference's member states – including Russia, the Ukraine and United States (where commercial surrogacy is permitted) and several countries from which people travel – are involved in considering the drafts. If adopted, such an approach would tacitly enable transnational commercial surrogacy and facilitate the bypassing of laws in countries prohibiting such practices. Such work contrasts significantly with the content of the Principles drafted by the donor-conceived and surrogacy-born people. Consultation with them and their broader community by the Hague Conference has not occurred. 

A fait accompli?

The work of the Hague Conference and its associates, however, is not a fait accompli. The feasibility of the draft convention or protocols has not been decided; two-thirds of the Hague Conference members are not represented in the meetings; the 'experts' in attendance may not represent their governments' views; and not all attendees appear to agree. Countries that prohibit commercial surrogacy may not sign a permissive convention or protocol that requires them to acquiesce to laws that conflict with their own. The International Principles for Donor Conception and Surrogacy drafted by donor-conceived and surrogacy-born people reject such work stating: 

'Former and current initiatives to formulate policy and/or principles on donor conception and surrogacy by government agencies and not-for-profits are unacceptable [having] failed to adequately consult with donor-conceived and surrogacy-born people; and [choosing] to ignore [their] voices... in favour of the interests of the fertility industry and intending parents.'

Women's organisations around the world are also speaking out. For example, the International Coalition to Abolish Surrogate Motherhood which includes almost 100 feminist, LGBTQI, and migrant women organisations have also proposed a Draft Convention for the Abolition of Surrogacy. In addition, they have launched a petition calling upon the 86 Hague Conference members to stop furthering the draft international regulation of surrogacy. They note

'The mission of the Expert Group was restricted to parentage. But their work shows serious deviations... willfully extend[ing] their mission to all stages of the surrogacy process including choice of surrogate mother, qualification of commissioning parents, contracts, consent, intermediaries, and financial aspects... despite that surrogacy arrangements are illegal in most countries of the world... If this draft protocol were to be accepted, it would mean the institution of the HCCH had lent itself to private and commercial interests. Indeed, at least three of the “experts” appointed are in a conflict of interest being professionally involved in the surrogacy industry.'

The Coalition finally, emphasise that surrogacy motherhood is not a matter of private law, and stating it violates several human rights conventions concerning women's and children's rights.

Conclusion

It is extremely unlikely that health and human rights issues that arise due to transnational commercial surrogacy practices will be fixed by 'rubber-stamping' transfer of legal parentage or superficial recognition of the identity rights of people born as a result. Affected groups are speaking out. The International Principles for Donor Conception and Surrogacy and the Draft Convention for the Abolition of Surrogacy propose alternatives. It remains to be seen whether and to whom governments will listen.

SOURCES & REFERENCES
Draft international convention for the abolition of surrogacy
International coalition for the abolition of surrogate motherhood |  7 October 2020
Making humans: International Principles for donor conception and surrogacy
change.org |  2 March 2020
The parentage / surrogacy project
Hague Conference on Private International Law |  1 October 2020
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