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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 born to date through this medical procedure. To date different national approaches exist - permissive to prohibitive and regulative to silent. Most permissive regulation stems from a viewpoint of the right to found a family and the autonomy of women. Most prohibitive regulation reflects ethical or religious arguments against potential 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 deals explicitly with this question, leaving a variety of interpretations open. 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 a situation where persons seeking to have a child through surrogacy travel from one country to another, purposely choosing 'surrogacy – friendly' jurisdictions as their destinations. This state of affairs 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.
Any approach from a child rights perspective must of course start from the CRC's guiding principles, such as the right to non-discrimination, best interests and other rights reflected therein. The CRC Committee's viewpoint is reflected in its concluding observations based on upholding rights such as access origins, nationality and preventing sale of children. Other international approaches have been reflected by the UN SR on sale and sexual exploitation in her 2018 report on surrogacy to the Human Rights Council and 2019 report to the UNGA, the work of the Hague Conference on Private International Law and ISS.
In 2013 and 2016, ISS called for urgent international regulation of international surrogacy arrangements. In 2019, ISS continues to refine the draft principles focusing on the rights of children. The preparation of these Principles was recommended 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. [...]
A core group of experts including Claire Achmad, Nigel Cantwell, Patricia Fronek, Olga Khazova, John Pascoe, David Smolin, Katarina Trimmings and Michael Wells-Greco with International Social Service has been responsible for drafting these principles. A wider group of experts and observers including 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 have contributed to development of the principles.
A number of international, regional and national consultations have been undertaken to provide input into the principles since 2016 to 2019 including in Verona, Zurich, Israel, Hague, Cape Town, London and Geneva. These consultations have occurred in parallel with, and seeks to complement, consultations that will take place, or have already taken place, in other regions and international contexts. Planning for further consultations in the Americas, Asia Pacific and Eastern Europe as well as with donor conceived and surrogate born persons are underway. Whilst the draft principles are not yet ready for public dissemination, key agreed messages and a preamble are available for consultation.
See 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