General Secretariat

International Surrogacy and donor-conceived persons

Call for Action 2016

Urgent need for regulation of

International surrogacy and artificial reproductive technologies

In 2016 International Social Service (ISS) calls for urgent regulation of international surrogacy and other artificial reproductive technology practices in cross border contexts. This builds on ISS' call for action 2013 for "Preserving the best interests of children" in these arrangements and work undertaken during this interval. Estimates are now of at least 20,000 children being born each year with numbers growing. Lack of regulation has resulted in vast lucrative business opportunities as well as potentially dangerous activities of intermediary agencies, specialised clinics as well as candidates for parenthood creating a pressing need for immediate action. Indeed, there have already been several individual cases around the world that have highlighted serious problems and likely abuses of unregulated reproduction through surrogacy, affecting particularly children.

ISS understands all arguments that call for regulation of international surrogacy and other artificial reproductive technology practices in cross border contexts (see call for action 2016). Notwithstanding these arguments as well as others not mentioned, ISS as a network most naturally aligns itself with reasoning linked to children's rights and places this as the overarching right governing our work. In particular, the Convention on the Rights of the Child and its Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography - as recently developed by Smolin (see reference below).

In the context of this protocol – where article 2a defines "sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration" - the CRC Committee has made a number of helpful observations as to possible applications to international surrogacy. There are clear recommendations to prevent the sale of children in situations where surrogacy is not properly regulated.

For instance in its concluding observation to India in 2014 where under the adoption section, at paragraph 57 the Committee states "Commercial use of surrogacy, which is not properly regulated, is widespread, leading to the sale of children and the violation of children's rights." This was followed with a recommendation at paragraph 58 that the State "(d) Ensure that the Assisted Reproductive Technology (Regulation) Bill, 2013, or other subsequent legislation contain provisions which define, regulate and monitor surrogacy arrangements and criminalizes the sale of children for the purpose of illegal adoption, including the misuse of surrogacy. The State party should ensure that action is taken against all those who have engaged in illegal adoptions." Likewise in its concluding observation to the USA in 2013, in the adoption section, at paragraph 29b, the Committee states "the absence of federal legislation with regard to surrogacy, which if not clearly regulated, amounts to sale of children." Therefore for ISS the need for regulation of international surrogacy and other artificial reproductive technology practices in cross border contexts is most convincingly embedded in the rights of children to be protected from being sold.

To this end, ISS with a group of experts is in the process of developing "Principles for a better protection of children's rights in cross-border reproductive arrangements, in particular international surrogacy" given the lack of regulation in this field and consequent breaches of human rights (see concept note). Whilst ISS believes that this initiative would certainly support the development of a potential international instrument on cross-border surrogacy (at the Hague Conference on Private International Law), as well as the development of recommendations or opinions in this regard (such as a General Comment by the CRC Committee or the work undertaken at the European Parliament), its priority action is to set the basic principles now that could support any of these initiatives.

ISS network, 5 January 2016

References:
• Call for action 2016 including references
• Call for action 2013
• David M. Smolin's work - http://works.bepress.com/david_smolin/19/