Commercial Surrogacy and the Sale of Children: A Call to Action for the Committee on the Rights of the Child
Introduction. One of the many unsettled issues in relation to commercial surrogacy is whether a commercial surrogacy arrangement amounts to an unlawful sale of children in breach of article 35 of the United Nations Convention on the Rights of the Child (CRC)1 and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (CRC-OPSC).2 For the purposes of this chapter, commercial surrogacy is understood as an arrangement where the surrogate is not only compensated for her expenses, but also receives a sum of money in addition to her reimbursable expenses. Some commentators assert that commercial surrogacy per se amounts to unlawful sale of children, while others argue that commercial surrogacy simply involves remuneration to the surrogate for her reproductive services rather than payment for a child. Many commentators agree that there is a need for regulation, whether it be at the national or international level. For some of those commentators who are of the view that commercial surrogacy per se amounts to the unlawful sale of children, then international regulation of the same is seen as largely redundant as it is already fully regulated by the prohibition in the CRC and CRC-OPSC.3 This chapter examines the tentative engagement of the United Nations Committee on the Rights of the Child on this issue. To date, this has largely been via the Committee’s concluding observations on periodic reports of individual states where international commercial surrogacy is permissible (or at least not prohibited). Given that the prospects of a binding international agreement on surrogacy are extremely unlikely in the near future, this chapter argues that the time has come for the Committee on the Rights of the Child to show some leadership on this issue (and, depending on its conclusion, other child rights issues associated with surrogacy). It suggests that the Committee should build on the recent work of the Special Rapporteur on the sale and sexual exploitation of children,4 and issue a general comment on commercial surrogacy. Such a general comment would assist in providing guidance to states in developing their domestic regulatory responses to surrogacy in the absence of an international agreement. A general comment could also be useful groundwork to contribute to the work of the Permanent Bureau of the Hague Conference on Private International Law (Hague Conference) on a possible private international law agreement, and the work of the International Social Service Network (ISS) on developing a set of principles for protecting children’s rights in the international commercial surrogacy context. The next section of this chapter explains the issue at stake in terms of whether commercial surrogacy amounts to sale of children. It then goes on to set out the key arguments of those who argue that commercial surrogacy amounts to sale of children, and those who argue that it does not. Following that, it looks at what the Committee on the Rights of the Child has said to date on commercial surrogacy, including whether or not it amounts to sale of children. The chapter then argues that the time has come for the Committee to adopt a general comment on surrogacy. At the outset, it should be emphasised that of the myriad legal and ethical issues associated with surrogacy, this chapter considers just one, i.e. whether or not commercial surrogacy amounts to unlawful sale of children in breach of art 35 CRC and the CRC-OPSC. This means the issue is being considered in something of a vacuum. Ryznar points out that “…it would be very difficult, and perhaps unwise, to consider only the legal framework of international commercial surrogacy while ignoring public policy goals.”5 While I have some sympathy with Ryznar’s point, especially given the undoubted complexities of the surrogacy debate, there is still merit in considering this specific question in relative isolation – especially in the wider context of a contribution to a book on commercial surrogacy. If commercial surrogacy does amount to unlawful sale of children in terms of art 35 CRC and CRC-OPSC, then either art 35 and CRC-OPSC should be re-negotiated to allow commercial surrogacy to continue, or commercial surrogacy should be prohibited. If the latter course of prohibition were taken, then this would arguably make many of the other issues in relation to commercial surrogacy redundant as they typically consider questions of regulation of commercial surrogacy either on the implicit assumption that it is a valid practice, or on the pragmatic basis that since it is occurring, it should be regulated. Alternatively, it may be the case that provided certain criteria are met, then commercial surrogacy does not amount to prohibited sale of children. If this is the case, then a clear statement from the Committee on the Rights of the Child to this effect would be welcome.