Logo Assembly Logo Hemicycle

Children’s rights related to surrogacy

Report | Doc. 14140 | 23 September 2016

Committee
Committee on Social Affairs, Health and Sustainable Development
Rapporteur :
Ms Petra De SUTTER, Belgium, SOC
Origin
Reference to committee: Doc. 13562, Reference 4071 of 3 October 2014. 2016 - Fourth part-session

Summary

Surrogacy – carrying and giving birth to a child for someone else – is not just any assisted reproductive technology.

The Committee on Social Affairs, Health and Sustainable Development has examined surrogacy from the angle of children’s rights. It thus considers that the Parliamentary Assembly should recommend that the Committee of Ministers:

  • consider the desirability and feasibility of drawing up European guidelines to safeguard children’s rights in relation to surrogacy arrangements;
  • collaborate with the Hague Conference on Private International Law (HCCH) on private international law issues surrounding the status of children, including problems arising in relation to legal parentage resulting from international surrogacy agreements, with a view to ensuring that the views of the Council of Europe (including those of the Parliamentary Assembly and the European Court of Human Rights) are heard and taken into account in any multilateral instrument that may result from the work of the HCCH.

A Draft recommendationNote

1 The Parliamentary Assembly recommends that the Committee of Ministers:
1.1 consider the desirability and feasibility of drawing up European guidelines to safeguard children’s rights in relation to surrogacy arrangements;
1.2 collaborate with the Hague Conference on Private International Law (HCCH) on private international law issues surrounding the status of children, including problems arising in relation to legal parentage resulting from international surrogacy agreements, with a view to ensuring that the views of the Council of Europe (including those of the Parliamentary Assembly and the European Court of Human Rights) are heard and taken into account in any multilateral instrument that may result from the work of the HCCH.

B Explanatory memorandum by Ms Petra De Sutter, rapporteur

1 Introduction

1 The Committee on Social Affairs, Health and Sustainable Development appointed me rapporteur on “Human rights and ethical issues related to surrogacy” on 28 January 2015.Note In the past sixteen months, I have presented several versions of a draft report on the subject to the committee after having organised a hearingNote and undertaken two fact-finding visits.Note However, the Committee (narrowly) rejected the amended preliminary draft resolution and amended preliminary draft recommendation at its meeting in Paris on 15 March 2016.
2 In view of this experience, I believe that members of the committee – and probably also of the Parliamentary Assembly as a whole – are too divided on the human rights and ethical issues related to surrogacy to find anything but circumstantial majorities in relation to some of the issues at stake. While I believe that there is a large majority in favour of prohibiting for-profit surrogacy arrangements,Note I no longer believe that such a majority exists on whether or not altruistic surrogacy arrangements should be allowed, nor on whether we should encourage States which do allow for-profit surrogacy arrangements to set minimum standards with a view to protecting surrogate mothers and surrogate-born children from abuse.
3 I would thus like to focus my report on what we can agree on, as discussed during our committee meeting in Strasbourg on 20 April 2016: the importance of putting the best interests of the child first. As I made clear in all versions of my draft report, I am of the opinion that for-profit surrogacy arrangements should be prohibited. Most children born of international surrogacy arrangements are, in fact, born of for-profit surrogate arrangements (estimations reach 98%-99%). Thus, the need to put the best interests of the child first dovetails neatly with the proposal to ban for-profit surrogacy arrangements.
4 This is why I proposed to change the title of the report to “Children’s rights related to for-profit surrogacy.”Note I wanted to make clear that, with this change in title, this is no longer a report on surrogacy as such, and I will thus take no position in this report on the ethical issues related to surrogacy in general, notably in relation to the rights of intending parents or women’s rights and vulnerabilities, which certainly are of major concern in relation to surrogacy. I will focus this report on for-profit surrogacy as it impacts on the rights of surrogate-born children, with the aim of ensuring that their rights are effectively protected.
5 On 10 March 2016, Ms Caroline Roux (Vice-Chairwoman of the International Union for the Abolition of Surrogacy, Director of VITA International) addressed a petition entitled “No maternity traffic” to the President of the Assembly on behalf of more than 100 000 signatories. The petitionNote was transmitted to our committee by the Bureau of the Assembly on 26 May 2016 to be taken into account in the context of the preparation of this report. The petition asks the Parliamentary Assembly “to condemn in clear terms all forms of surrogacy as constituting a violation of rights and human dignity”.
6 In light of the explanations given above (paragraphs 1-4), the preliminary draft resolution I proposed to the committeeNote would have condemned in clear terms all for-profit surrogacy arrangements, but would not have taken position on other forms of surrogacy. My personal opinion on altruistic forms of surrogacy, which concern only an extremely limited number of children in Europe, is well-known: I do not believe that altruistic surrogacy should be prohibited (for many reasonsNote), but it should be limited to gestational surrogacy, be tightly regulated and be legally available only to resident nationals of the jurisdiction in questionNote. Again, since our committee could not reach a clear majority in accepting nor rejecting this opinion, the present report will not deal with altruistic surrogacy arrangements.
7 I continue to believe, however, that the lack of a multilateral legal instrument on parentage related to surrogacy increases the risk of children’s rights abuses. Before the Hague Conference on Private International Law (HCCH), and subsequently the Council of Europe, adopted their conventions on adoption, the situation regarding international adoptions was as unregulated as international surrogacy and the resulting legal parentage issues are now. I thus believe that the Assembly should encourage both Council of Europe member States and the Committee of Ministers to collaborate with the HCCH.

2 The case against for-profit surrogacy

8 For-profit surrogacy arrangements are defined by the HCCH in the following way (see appended glossary):
“A surrogacy arrangement where the intending parent(s) pay the surrogate financial remuneration which goes beyond her ‘reasonable expenses’. This may be termed ‘compensation’ for ‘pain and suffering’ or may be simply the fee which the surrogate mother charges for carrying the child. This may be a gestational or a traditional surrogacy arrangement.”
9 As the HCCH points out, the defining characteristic of a for-profit surrogacy arrangement is that the surrogate receives financial remuneration from the intending parents which goes beyond “reasonable expenses”. The following countries were identified in a recent reportNote as countries in which such for-profit surrogacy is legal, performed on a large scale, where there are legal measures allowing intending parent(s) to obtain legal parentage, and there is no nationality, domicile or habitual residence prerequisite for the intended parents. These include: Russia, Ukraine, the US States of Alabama, Arkansas, California, Connecticut, Illinois, Iowa, Maryland, Massachusetts, Minnesota, Nevada, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin, as well as India (NB: since 2013, no longer for homosexual couplesNote; a bill is currently pending before parliament to restrict surrogacy arrangements to resident national heterosexual couples married for at least 5 years with health problems and with a close relative as the surrogate) and Uganda.
10 How many children are born of international for-profit surrogacy arrangements? Though most agree that the number has been rising for a while, reliable estimates are hard to come by. The non-governmental organisation (NGO) International Social Service (ISS) estimates that over 20 000 children are born through surrogacy annuallyNote; the BBC, citing official Indian estimates, reported 5 000 surrogate babies born each year in India aloneNote. In Ukraine, 396 cycles of IVF with surrogate mothers in private clinics (State clinics do not offer surrogacy) were reported to the Ministry of Health on a voluntary basis in 2014. In any case, for-profit surrogacy has an important financial dimension: in India alone, it is estimated to be worth US$2.3 billionNote – of which only about one third usually goes to the surrogate motherNote, with the biggest payments seeming to be made to agencies, middlemen and doctors/clinics.
11 Most surrogate mothers in for-profit arrangements, especially in developing countries, are relatively poor and not well-educated. They run all the risks of a medically-induced pregnancy and childbirth.Note Moreover, they are particularly vulnerable because they are bound to give up the child shortly after birth – usually, their (full) payment will depend on it. This brings with it psychological risks, compounded if the surrogate is also the genetic mother, receives no proper counselling and/or cannot stay in contact with the child. There is also the risk that the intending parents will interfere with the pregnancy (placing limitations on the decision-making of surrogate mothers regarding their health or even the continuation of the pregnancy), or refuse to accept and thus abandon a child which is not healthy or otherwise not wanted anymore.
12 There have been a number of scandals in recent years involving abuses of surrogate mothers in international, for-profit surrogacy arrangements – where women in countries such as India or Nepal (which has since banned such arrangements) have reportedly been isolated on “baby farms”, their personal freedoms severely curtailed, far from their familiesNote, subjected to practices posing unnecessary medical risks, paid a pittance (or nothing at all in case of miscarriage or stillbirth)Note. But even in countries such as the United States, some surrogate mothers have reported being abused by intending parents or intermediaries.Note
13 One of the most famous scandals, the “Baby Gammy” case, illustrates well the reasons for which I believe that for-profit surrogacy arrangements should be forbidden – even though the case is not as clear-cut as was initially claimed in the media. Australian couple Wendy Li and David Farnell made international headlines in 2014 when they engaged a Thai surrogate (reportedly for less than the equivalent of €10 000) but only took home one of the twins born, Pipah, leaving behind Gammy, who has Down’s syndrome. The surrogate, Pattaramon Chanbua, applied for legal custody of Pipah after learning that Farnell had been jailed for child sex offences nearly two decades ago. The responsible family court in West Australia ruled in April 2016 that reports that the parents had “abandoned” Gammy in Thailand (and tried to access the infant’s trust fund) were untrue and the result of a “media frenzy”.Note The judge ruled that the conflicting accounts between the Farnells and Ms Chanbua came about because of cultural and language differences, and that it was little wonder such misunderstandings arose “when a woman’s body is rented for the benefit of others”.
14 As this case illustrates, for-profit surrogacy arrangements, in particular international ones, should be prohibited as a violation of human dignity because of the high, inherent risks of:
  • reducing children to commodities to be bought and sold, and putting them at risk of abandonment or abuse;
  • exploiting surrogate mothers, who cannot give their consent “freely, unconditionally, and with full understanding of what is involved”.Note This concern is the most obvious when the surrogate mothers are not native English speakersNote and/or are illiterate; but even the pure fact that a “life-changing” amount of money changes hands can put into question the validity of the consent given.Note

3 Protecting children’s rights

15 The United Nations Convention on the Rights of the Child has guaranteed the following rights to children for over 25 years now:
a the right to be registered immediately after birth and the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents (Article 7);
b the right not to be separated from his or her parents, and to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9);
c the right for the best interests of the child to be a primary consideration (Article 3).
16 It is clear that the child cannot be blamed for being born out of a surrogacy arrangement; thus, the rights of the child cannot be curtailed simply because the intending parents flouted national law when it forbids surrogacy. This is the essence of the European Court of Human Rights judgments in Mennesson and Labassee v. France: the best interests of the child prevail. In these landmark judgments of June 2014, the Court, availing itself of the “best interests of the child” principle, clarified that France had violated Article 8 of the European Convention on Human Rights (ETS No. 5) in refusing to recognise the legal parent–child relationship of a genetic father with his surrogate-born children. However, some questions remain. While France can now no longer presume that all foreign birth certificates established following an international surrogacy arrangement are invalidNote, with all the effects on the child(ren) concerned regarding legal parentage and citizenship,Note it is unclear whether it is a violation of a child’s Article 8 rights to deny him/her the ability to have his/her legal parentage, established abroad, recognised (or established again) with a non-genetically related intending parent.Note The European Court of Human Rights judgments also seem to leave open the question of whether the receiving country can also resort to its adoption procedure instead of recognising the legal parentage established abroad.Note
17 Following these decisions, the French Court of Cassation held that foreign birth certificates of children born under surrogacy arrangements in Russia in two separate cases of intending (genetic) fathers, could be transcribed in the civil register. The principle that the best interest of the child prevails was confirmed in another case (Paradiso and Campanelli v. Italy) where there was no genetic link between the intending parents and the child. In its judgment of 27 January 2015, the European Court of Human Rights also spelled out that it is necessary that a child should not be disadvantaged by the fact that he was born by a surrogate mother.Note However, this judgment was appealed by the Italian Government, and is being judged by the Grand Chamber.Note
18 On 21 July 2016, the European Court of Human Rights delivered a judgment in the cases of Foulon v. France and Bouvet v. France, which concerned the non-recognition in France of the acknowledgment of paternity of intending (biological) fathers of children born to surrogates in India. Despite the change in French case law since the Mennesson and Labassee judgments, legal parentage had not been established (with Mr Foulon having exhausted all legal options and remedies). The Court thus came to the same conclusion as in Mennesson and Labassee: the right to respect of the children’s privacy had been violated by France, and awarded each child €5 000 in respect of non-pecuniary damage. It is important to note that all these judgments against France find no violation of Article 8 of the Convention (right to respect for private and family life) of the applicant parents, only of the surrogate-born children. One further case against France is currently still pending before the European Court of Human Rights: Laborie v. France concerns the non-recognition of Ukrainian birth certificates in France with respect to two children born to a surrogate.
19 It is actually not that easy to apply both the Convention on the Rights of the Child and the European Court of Human Rights judgments in practice, because, for example, the definition of who is a child’s parent depends on the legal definition in national law, and this can differ between the different national jurisdictions involved. Theoretically, Article 7 could be interpreted in a way that it applies to maximum three “mothers” and three “fathers”: the mother who has born the child (the surrogate mother), the mother who is the genetic mother (the egg donor), the intending mother, the genetic father (the sperm donor), the intending father, and the husband of the surrogate mother. The child born of such a surrogacy arrangement could be interpreted as having the right to know and to be cared for by all these six people – which, of course, rarely happens in practice, in particular in international surrogacy arrangements of the for-profit kind.
20 As the HCCH has pointed out,Note “States’ approaches to the establishment and contestation of legal parentage, particularly in the context of children born by means of assisted reproductive technology (“ART”) and international surrogacy arrangements, vary significantly. Where children are connected with more than one State or move cross-border, the application of different rules on jurisdiction, applicable law and the international circulation of foreign public documents (i.e., birth certificates, civil status documents) and judicial decisions (i.e., rules on recognition) has led to situations of uncertain and “limping” legal parentage”.Note
21 In practice, when the legal parentage of a child needs to be decided in a cross-border surrogacy case, the HCCH has noted that “national and regional developments appear to be directed towards securing continuity in the civil status of children”.Note This is because there is an important human rights dimension to the status of children: “The unity, stability, and continuity of an individual's personal status is of a social interest. A certain civil status is a constituent element of a child’s personal identity.”Note In addition, cross-border surrogacy can also be a source of statelessness for children, in violation of Article 7 of the Convention on the Rights of the Child.
22 However, even if, in practice, most countries (including jurisdictions which prohibit for-profit surrogacy arrangements) manage to find solutions for children born abroad of such arrangements eventually, the solutions are not always ideal, and not necessarily in the best interest of the child. What exactly is in the child’s best interest is also open to dispute: is it in a child’s best interest, for example, to be sent back to a foreign surrogate mother who does not wish to care for the child in a surrogacy-friendly jurisdiction, or to stay with the intending parents who do wish to care for the child in a jurisdiction where surrogacy is prohibited, or to be taken into care by the State in either of the jurisdictions? In any case, being abandoned by the intending parents (in particular, if the surrogate mother refuses to care for the child as well) because the child is not healthy or otherwise not wanted anymore (for example, because the intending parents have separated), is definitely not in the child’s best interest.Note
23 The child’s vulnerability in all this is very clear. Whether children born of surrogate mothers also run psychological risks due to the lack of maternal attachment of the surrogate mother during pregnancy, and the “abandonment” straight after birth, is disputed, as scientific studies are few and far between, and often plagued by inherent bias.Note However, in some international surrogacy cases, courts are already unable to trace surrogate mothers a few months after the birth of the child(ren) concerned – it is thus highly unlikely that all children born as a result of international surrogacy arrangements will be able to trace their genetic and birth origins later in life, which is not only a violation of the child’s right to know his/her origins, but can also have negative psychological (and even physicalNote) repercussions on the child.

4 Conclusions and recommendations

24 The vast majority of for-profit surrogacy arrangements are across State borders (for example in the United States) or across national borders, usually involving intending parent(s) from jurisdictions in which for-profit surrogacy is prohibited and surrogates in jurisdictions where for-profit surrogacy is legal and where there are legal measures allowing intending parent(s) to obtain legal parentage. The reasons why intending parent(s) “vote with their feet” in this way are multiple: infertility tends to be the most prevalent one.Note The alternative of adoption is not always available to these intending parents, for example because of national laws and regulations which set conditions they cannot fulfil (such as nationality requirements, age limits, the need to be married, in a heterosexual stable relationship, etc.). However, some intending parents also choose surrogacy over adoption because they want their “own” child, which is going to be genetically related to at least one of them; because they have no realistic prospect of being able to adopt a child in a relatively short time frame; or because they fear that they may not pass or would indeed not pass adoption screenings.
25 But what does this mean for the child(ren) born of such cross-border surrogacy arrangements in practice? Such children face various risks from multiple actors (intending parents, surrogate mothers, third parties, States in which the children are born, States to which the children are connected via their intending parents), as noted above:
  • falling victim to child trafficking;
  • falling victim to abandonment and/or abuse;
  • becoming stateless or being left with “limping” parentage;
  • having their right to know their origins violated, with the attendant possible negative psychological (and even physical) repercussions.
26 The application of the “best interest of the child” principle by States confronted with individual children born abroad of international for-profit surrogacy arrangements generally leads to acceptable – though not expeditious – outcomes even in States which prohibit some or all forms of surrogacy domestically, via adoptions, parental orders, humanitarian leave to remain, etc. However, there is no legal certainty as these States do not want these case-by-case solutions to be seen as an endorsement of international surrogacy arrangements which may lead to their further proliferation.
27 As I have already underlined in previous versions of this draft report, I believe that there is no “right to a child”, but that children have rights that need to be respectedNote. And these rights need to be respected by all actors, including States. I do understand why it is so difficult to harmonise national laws in a way that respects children’s rights to legal parentage without de facto legitimising cross-border for-profit surrogacy arrangements, which would in fine not be in these children’s best interest either.Note
28 The ideal way to solve this problem would, of course, be for all countries to prohibit for-profit surrogacy, which comprises an estimated 98%-99% of all surrogacy arrangements. Indeed, I have proposed this solution all along. The European Parliament included a paragraph in a resolution of December 2015Note calling for the prohibition of gestational, for-profit surrogacy. Surprisingly, however, the European Parliament only called for the prohibition of gestational for-profit surrogacy, not traditional for-profit surrogacy (which I personally consider the worst form of surrogacy). It is for this reason that I consider that member States should prohibit all forms of for-profit surrogacy in the best interest of the child.
29 However, it is a fact that, due to the absence of a binding legal instrument on the matter, each country is free to decide for itself which stance it wants to take domestically. In other words, it is unlikely that all countries which currently allow for-profit surrogacy and practise it on a large scale (including two Council of Europe member States, Ukraine and Russia), or the ones where it is practised illegally but tolerated (as in GreeceNote) will decide to prohibit for-profit surrogacy just because the Parliamentary Assembly of the Council of Europe has so recommended. It seems even more unlikely that such countries would agree to be bound by a legal instrument prohibiting for-profit surrogacy, whether such a legal instrument were developed at a European or international level. Since there is little, if any cross-border movement of surrogate-born children between countries which prohibit for-profit surrogacy, a legal instrument prohibiting for-profit surrogacy would have no effect on children’s rights.
30 In these circumstances, I believe that, as a minimum requirement, those countries which continue to allow for-profit surrogacy should be required to only accept resident nationals of their own State and country for surrogacy arrangements. Indeed, there is already an interesting trend in this direction which has been noted by the HCCHNote. If this requirement were included in an international legal instrument to which both countries prohibiting and countries allowing for-profit surrogacy were bound, it would have the effect of reducing surrogacy arrangements to less than 1%-2% of their current number, and avoid cross-border movement of children born of for-profit surrogacy arrangements altogether, thus effectively protecting these children from violations of their rights linked to parentage and nationality.
31 In conclusion, I thus propose that the Assembly recommend that:
  • member States prohibit all forms of for-profit surrogacy in the best interest of the child;
  • member States and the Committee of Ministers collaborate with the HCCH with a view to including, as a minimum requirement, a restriction of access to surrogacy arrangements to resident nationals of their own State and country in any multilateral instrument that may result from the HCCH’s parentage/surrogacy project;
  • member States take care not to violate children’s rights when taking measures to uphold public order and discourage recourse to surrogacy arrangements;
  • the Committee of Ministers explore the desirability and feasibility of drawing up European guidelines to safeguard children’s rights in relation to for-profit surrogacy arrangements.
32 Finally, there are many ways in which most of our member States could make adoption a more viable alternative to surrogacy, thus providing a child in need with loving parents and fulfilling infertile couples’ desire for a child – the best outcome for all.

Appendix :[Revised] Glossary prepared by the Hague Conference on Private International LawNote

International surrogacy arrangement

A surrogacy arrangement entered into by intending parent(s) residentNote in one State and a surrogate resident (or sometimes merely present) in a different State.

Such an arrangement may well involve gamete donor(s) in the State where the surrogate resides (or is present), or even in a third State.

Such an arrangement may be a traditional or gestational surrogacy arrangement and may be altruistic or for-profitNote in nature (see below).

Traditional surrogacy arrangement

A surrogacy arrangement where the surrogate provides her own genetic material (egg) and thus the child born is genetically related to the surrogate.

Such an arrangement may involve natural conception or artificial insemination procedures.

This may be an altruistic or for-profit arrangement (see below).

Gestational surrogacy arrangement

A surrogacy arrangement in which the surrogate does not provide her own genetic material and thus the child born is not genetically related to the surrogate.

Such an arrangement will usually occur following IVF treatment. The gametes may come from both intending parents, one, or neither.

This may be an altruistic or for-profit arrangement (see below).

For-profit surrogacy arrangement

A surrogacy arrangement where the intending parent(s) pay the surrogate financial remuneration which goes beyond her “reasonable expenses”. This may be termed “compensation” for “pain and suffering” or may be simply the fee which the surrogate mother charges for carrying the child. This may be a gestational or a traditional surrogacy arrangement.

N.B. It is often difficult to draw the line between what is an altruistic surrogacy arrangement and what is a for-profit arrangement. For example, if a surrogate is unemployed prior to conception but can claim “reasonable expenses”, including loss of earnings, for the arrangement, is this arrangement still “altruistic”?

Altruistic surrogacy arrangement

A surrogacy arrangement where the intending parent(s) pay the surrogate nothing or, more usually, only for her “reasonable expenses” associated with the surrogacy. No financial remuneration beyond this is paid to the surrogate.

This may be a gestational or a traditional surrogacy arrangement.

Such arrangements often (but not always) take place between intending parent(s) and someone they may already know (e.g., a relative or a friend).

Receiving State

The State in which the intending parents are resident and to which they wish to return with the child, following the birth.

State of the child’s birth

The State in which the surrogate gives birth to the child and in which the question of the child’s legal parentage usually first arises.

This will usually be the State in which the surrogate is resident. However, in some cases the surrogate may move to a State specifically for the birth.Note

Surrogate (mother)

The woman who agrees to carry a child (or children) for the intending parent(s) and relinquishes her parental rights following the birth.

In this paper, this term is used to include a woman who has not provided her genetic material for the child. In some States, in these circumstances, surrogates are called “gestational carriers” or “gestational hosts”.

Intending parent(s)

The person(s) who request another to carry a child for them, with the intention that they will take custody of the child following the birth and parent the child as their own. Such person(s) may, or may not be, genetically related to the child born as a result of the arrangement.

Gamete (egg) donor

The woman who provides her eggs to be used by other person(s) to conceive a child.

In some States, such “donors” may receive compensation beyond their expenses. The question of the anonymity of “donors” also varies among States.

Gamete (sperm) donor

The man who provides his sperm to be used by other person(s) to conceive a child.

In some States, such “donors” may receive compensation beyond their expenses. The question of anonymity of “donors” also varies among States.

“Legal parentage” or the legal parent(s)

The person(s) considered to have acquired the legal status of being the “parents” of the child under the relevant law, and who will acquire all the rights and obligations which flow from this status under that law.

In surrogacy situations, this may not (indeed, often will not) coincide with the genetic parentage of the child (i.e., those who have provided their genetic material).

“Genetic parentage” or the genetic parents

The person(s) who have provided their genetic material for the conception of the child. In some languages, this is referred to as “biological parentage”.

In surrogacy situations, such person(s) may not be (and often will not be), the legal parent(s) of the child.

;