The Hague Conference – 6 to 9 February 2018. The Experts’ Group at the Private International Law Conference will work on the legislative surrogacy bill to regulate transnational contracts. However, surrogacy is based on foundations that affect numerous human rights, already embodied in international law. Philosopher, Sophia Kuby[1] reflects on the inconsistencies of the bill.
Most European countries have banned surrogacy (France, Germany, Austria and Spain) or authorised altruistic surrogacy, free of charge (United Kingdom, the Netherlands). Transnational surrogacy is therefore based on illegal contracts in at least one of two countries. Even if surrogacy contracts are based on the legitimate desire of the couples in question, numerous problems nevertheless arise. Agencies, clinics, lawyers, doctors, remunerated women, intentional parents, etc. “The world surrogacy market generates around $5 billion every year”.
The main problem lies in identifying the parents, and this varies from one form of legislation to the next. Up to six adults may be involved in conceiving a child: the genetic parents (egg and sperm donors), the biological parents (surrogate mother and her husband) and the couple claiming legal parentage (the intended parents). “Surrogacy obviously impacts children’s rights, which are recognised in many international treaties, such as the right to be born and brought up with the biological family, the right to family reunification, the right to maintain a relationship with both parents and the right not to be a victim of trade or human trafficking”,explains Sophia Kuby.
The “right of the child” is currently non-existent and any approach presuming this right would be difficult to reconcile with international law. To respect Human Rights, “an international agreement must protect vulnerable humans to prevent them from becoming the object of contracts or the product of a commercial transaction,” she emphasises.
This convention could comply with human dignity if the following four points were implemented:
1) Condemnation of any form of surrogacy (whether or not remunerated),
2) Recognition of the rights of a state to refuse recognition of legal surrogacy acts,
3) Request to states to consider adoption in the event of any request for parental recognition through surrogacy,
4) Implementation of heavy penalties for states facilitating international surrogacy.
In accordance with Italian Case Law (Campanelli case[2]), the philosopher explained that, “instead of recognising the parentage of ‘intended parents'”, the adoption procedures clearly defined in international law appear to be “the most appropriate solution for rescuing a child conceived within the scope of illegal surrogacy contracts”. When surrogacy deprives a child from his/her real parents, the aim of adoption is to give a child a family in a pre-existing situation of abandonment. The interests of the child must take precedence over the wishes of adults.
“We should not tacitly or explicitly endorse a practice where the main victims are vulnerable children,” concludes Sophia Kuby.
[1] Philosopher and Director of the European Union Office of ADF International.
[2] Surrogacy: No right to family life based on buying a child
Le Figaro, Sophia Kuby (05/02/2018)