A group of experts from the Hague Conference got together last February to work on an international convention project regarding parentage. This included going over surrogacy-related issues. Claire de la Hougue provided Gènétique with a review of the main questions that were brought up.
From 6th to 9th February 2018 a group of experts came together over the parentage/surrogacy project of the Hague Conference on Private International Law. (HCCH). (cf. Hague Conference: regulate a practice contrary to international law?) The Hague Conference is an organisation that brings together 82 States and the European Union. It is led by a Council on general affairs and policy, made up of all its members, that works with the assistance of a Permanent Office.
The Conference has been working since 2011 on these “issues regarding private international law concerning the status of children. This includes questions brought up by agreements concerning cross-border situations including surrogacy”.
Work focused on the legal status of surrogacy
In 2015, following the recommendation issued by the Permanent Office, the Council decided to institute a group of experts who would study the possibility and opportunity of pursuing work in this field. A “geographically representative” group made up of experts from about twenty countries was therefore constituted and met in February 2016, 2017 and 2018.
From the very beginning, the work led by the Permanent Office, that prepares the work for the Council and the Group, was clearly one-sided. Thus, the consultation process launched in 2012 to collect information only involved people for whom this situation benefitted: beside the States, only lawyers, surrogacy agencies and doctors involved in surrogacy were interrogated. Likewise, at the various meetings of the Group of experts, only two NGOs were invited to come as observers; International Academy of Family Lawyers, an international lawyers’ association represented by Anne Marie Hutchinson, who herself deals with surrogacy contracts and is calling for an international treaty on surrogacy, and the Service Social International which has been claiming since 2016 the “urgent necessity of regulating international surrogacy as well as artificial reproductive technology” .
The Permanent Office has been pushing in favour of a convention intended, so it says, to avoid abuses regarding surrogacy, to insure legal security and to protect the rights of children, women, and other people involved. It assures it does not take a position in favour of surrogacy concerning the content when it compares it to adoption: The 1993 Convention on adoption does not oblige States to agree to international adoption. The Permanent Office carries on pretending it ignores the difference between adoption and surrogacy: while the first was instituted for children’s well-being, the second option considers them as objects fabricated in order to satisfy adults desires. Regulating surrogacy implies considering it as an acceptable principle.
As surrogacy remains more than controversial, the Group claimed that it originally started off by looking into questions related to parenting on an international level, before explaining this year that main international issues regarding parentage come from surrogacy and that a convention refusing to include the subject would be of no practical interest.
February 2018: Parentage questioned
At the meeting held in February 2018, after having insisted on the “importance of parentage as a status thanks to which the child benefits from a great number of rights”, the Group defined parentage as “the relation between the parent and the child such as established by law”, in other words gave it a purely positivist definition, separated from any link with reality.
Already in February 2016, the Group had explained the importance of focusing on recognizing parentage established in foreign countries, presenting it as necessary in the child’s superior interest. What it really means is the obligation of accepting the fait accompli. This year, it affirmed that “the recognition of legal decisions in terms of parentage should intervene as of right”. However, the Group “claimed it was convinced the instrument should not treat the effects of parentage involving fields which do not fall within its application area, such as nationality, food or parental responsibility”. This comes as a contradiction of its claim according to which a child benefits from a great number of rights from parentage, listed in the report from February 2018: “identity, nationality, food obligations, heritage”. If parentage is “the relation between the parent and the child”, separating it from parental responsibility makes no sense. The incoherence, or should one say schizophrenia, of this will of recognizing parentage without recognising its effects brings out the absurdity of motherhood dissociation but also the various tensions within the Group.
Several experts, several opinions
Concerning surrogacy, “experts have provided divergent opinions as to whether rules of general private international law in terms of parentage” should be applied, and if the instrument considered should include this subject or not. The Group has, however, recognized the consistent public concern and considerations concerning, amongst other things, lopsided parentage and risks of exploitation. It also brought up medically assisted procreation with donor, some members underlining “the importance for children to know where they come from”.
Finally, the same as every other year, the Group asked for its mandate to be continued and the means to carry on its works, even planning two meetings instead of one before February 2019.
The Conference is an expert at getting what it wants: when Member States are reticent about a subject, it explains how complex the case is and that it requires more serious discussion. This enables the subject to be put back on the table at the next meeting, the Permanent Office having by then honed its arguments.
 “The creation of a multilateral treaty on surrogacy arrangements is a priority and the IAML has committed the expertise of our members to the important work being undertaken worldwide to achieve this”.https://www.iafl.com/past-meetings/surrogacy-symposium/index.html.: This organisation is however less radical that the American Bar Association which refuses any regulation concerning surrogacy, even in the name of human rights, considering the market suffices for its regulation: