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The ever-evolving and increasing recourse to assisted reproductive technologies (ARTs) has wide implications for children (see reference below). The 2019 COE report Anonymous donation of sperm and oocytes: balancing the rights of parents, donors and children estimates approximately 8 million children have been born to date through this procedure. At present, vastly different national approaches exist, ranging from permissive to prohibitive and regulative to silent. Most permissive approaches stem from a viewpoint of the right to found a family and the autonomy of women. Most prohibitive approaches reflect ethical or religious arguments against potential and documented exploitative practices, especially in third party reproduction. Whilst case law is developing from the perspective of children's rights, neither the Convention on the Rights of the Child (CRC) nor any other international instrument deal explicitly with this question, leaving a variety of interpretations open. According to ISS, inadequate attention on a global front has been given to the implications for children's rights as defined by the CRC.
In particular the variety of domestic legal responses to surrogacy has led to persons seeking to have a child through surrogacy making the necessary arrangements in a 'surrogacy-friendly' jurisdiction. This, together with the financial benefits that may be gained, has resulted in the gradual development of an extensive international commercial surrogacy market, which paves the way to lucrative business opportunities and activities with a high degree of inherent risk of human rights abuses. It has also led to extremely complex and delicate cross-border problems in terms of safeguarding the rights of the children concerned.
Any approach from a child rights perspective shall of course start from the CRC's general principles, such as the right to non-discrimination, best interests and other rights guaranteed therein. The CRC Committee's viewpoint is reflected in its concluding observations based on upholding rights such as access to origins, nationality and preventing sale of children. Other international approaches have been reflected by the 2018 report on surrogacy submitted by the UN Special Rapporteur on sale and sexual exploitation to the Human Rights Council and her 2019 report to the UNGA, as well as the work of the Hague Conference on Private International Law (HCCH) and ISS.
In 2013 and 2016, ISS called for urgent international regulation of international surrogacy arrangements as they affect the children concerned. In that context, ISS launched an initiative in 2016 to draw up a set of Principles that could be agreed on globally to guide policy and legislation. Continued work on these Principles was supported by the United Nations Special Rapporteur on the Sale and Sexual Exploitation of Children in 2018 (UN Doc. A/HRC/37/60), in her recommendation: [At the international level]:
78. The Special Rapporteur invites the international community to:
[...] (d) Support the work of the International Social Service in developing international principles and standards governing surrogacy arrangements that are in accordance with human rights norms and standards and particularly with the rights of the child. [...]
Work on developing and refining these draft principles is complex and still on-going. In keeping with the original aim of the exercise and the UN Special Rapporteur's recommendation, the drafting focuses on laying the foundations for worldwide consensus on effectively protecting the human rights of children who are born through surrogacy arrangements. Consequently, the draft Principles are designed to be "neutral" as to the acceptability of the practice of surrogacy itself. Such acceptability is a function not only of human rights norms but also of ethical considerations. At the same time, particular kinds of arrangements currently practised can be explicitly or implicitly addressed from a purely children's rights standpoint and within the overall human rights context.
The first draft of the Principles was prepared by a core group of experts convened and coordinated by Mia Dambach on behalf of ISS: Claire Achmad, Nigel Cantwell, Patricia Fronek, Olga Khazova, John Pascoe, David Smolin, Katarina Trimmings and Michael Wells-Greco. This core group has since taken responsibility for regularly reviewing and adjusting the draft in the light of wider consultations. These consultations have involved a broad group of experts and observers including the UN CRC Committee, Governments, HCCH, UNICEF, the UN Special Rapporteur on the Sale and Sexual Exploitation of Children, academics and practitioners from multi-disciplinary backgrounds representing all regions in the world.
Securing their inputs has been ensured notably through a number of international, regional and national consultations since 2016, including in Verona, Zurich, Israel, The Hague, Cape Town, London and Geneva as well as Cambodia (chronological order). Further consultations in the Americas and Eastern Europe as well as with donor conceived and surrogate born persons are pending due to the current COVID-19 pandemic.
Whilst the draft principles are not yet ready for public dissemination, a preamble is available for consultation.
• CRIN's Discussion paper: A children's rights approach to assisted reproduction (2018): https://archive.crin.org/en/library/publications/discussion-paper-childrens-rights-approach-assisted-reproduction
• UN SR on sale and sexual exploitation
• HCCH parentage/surrogacy project