Pre-birth surrogacy deals usher in sale of babies: UN

A pre-birth legally binding contractual relationship between a surrogate mother and “commissioning” parents, in which the child transfer is conditional upon payment, constitutes the sale of a child, a UNICEF briefing document has found. 

The 2022 briefing note, from UNICEF and Child Identity Protection, found that “children are at greater risk of being sold in commercial surrogacy deals.

“Sale and trafficking of children born through surrogacy is occurring … due to a lack of protective safeguards being implemented by states,” the briefing note adds.

Maud De Boer-Buquicchio, pictured, (former UN Special Rapporteur on the sale and exploitation of children) told the Oireachtas committee on international surrogacy (19 May) that the interests of multiple stakeholders were often prioritised over those of children born from surrogacy.

Sales could occur in both regulated and unregulated contexts, when paid-for global surrogacy deals existed in a legal vacuum where market forces prioritised profit, she warned.

Crime

“Sale [of a baby] is a crime, and it should be a crime under international law,” she said.

However, she added, “it would not be fair to prosecute surrogate mothers who have accepted profit from the treatment”.

Medical staff should also be excluded from prosecution, she stated.

The role of intermediaries such as medical clinics, however, had a “much more doubtful role, and should really be sanctioned,” the former rapporteur continued. 

'Inherently exploitative'

It was inherently exploitative of the child to determine his or her future without considering his or her best interests, De Boer-Buquicchio said.

While the concept of “legal certainty” in pre-birth contracts “sounds convincing”, it was a risky concept from the perspective of the child, she stated. 

“It doesn’t leave any room for post-birth best-interests declarations,” she added, “and, in particular, an assessment of how the process prior to the birth took place; whether there was any coercion.”

Legalised pre-birth enforceable contracts on the transfer of parentage were adverse and “exactly what we don’t want”, De Boer-Buquicchio said.

“Prohibiting commercial surrogacy is important, as it is prohibiting sale, and therefore avoiding creating … black and grey markets,” she said.

Concept of sale

“Please, stick to the concept of sale, it is something which should not be allowed, and it has very clear elements – of transfer, of payment, of exchange,” which should all be avoided, she stressed to the politicians.

The concept of sale is avoided for being too “uncomfortable”, De Boer-Buquicchio argued, in the bid to create legal pathways. 

The name of the birth mother should always be on the birth certificate, she said, and access to this information should be facilitated according to the age and maturity of the child.

Other information could be on a separate confidential register, she added.

Profit-seeking intermediaries

Profit-seeking intermediaries facilitate the market in child selling, when they arrange the transfer of the child (physically and/or legally) for money.

This was to the detriment of children’s rights, she added – including the right to non-discrimination, right to identity, right to nationality, and the right to a child’s best interests being the primary consideration.

There is also the right of the child to not be sold, as defined in the Convention of the Rights of the Child.

Babies may also be discriminated against on grounds of disability and gender, in paid-for global surrogacy deals, UNICEF adds in its briefing note.

Document falsification

“The identity and family relations of a child cannot be for sale,” the UNICEF document points out, but there is greater risk of document falsification in paid-for global surrogacy deals.

Establishing and preserving identity can be difficult or impossible for children born through surrogacy, UNICEF has stated.

“Knowing one’s origins is fundamental to the child’s physical, psychological, cultural and spiritual development,” the document continues.

When safeguards are not fully aligned with the child’s rights in the Convention of the Rights of the Child, a post-birth best-interest determination (BID) should be conducted, Maud De Boer-Buquicchio said.

If a child sale does occur, both the immediate needs of the child and long-term considerations should be factored in.

Careful attention should be given to how the child may feel when they are older, if their intending parent(s) participated in the sale, and the State nevertheless placed him or her with them.

Complex issue

The issue of surrogacy is complex due to diverse views, De Boer-Buquicchio continued.

Some believe there is a broad "right to procreate" that should be available to all without discrimination, and that prohibiting paid-for surrogacy would create underground markets.

Others are of the view that any regulation of surrogacy – including prohibition of sale alone – will lead to legalised markets in children. 

“I believe that we can at least agree that all situations that lead to sale of children should, as a minimum, be prohibited,” De Boer-Buquicchio said in her opening statement to the committee.

De Boer-Buquicchio’s 2019 study found an example of good practice in the 2009 decision of the Colombian Constitutional Court, which established that, even though surrogacy was not addressed in the legal order, children born through assisted reproductive technology, including surrogacy, had the same rights as other children.

Consequences of surrogacy deals

That report points out that states must deal with the consequences of paid-for surrogacy deals, and it is therefore in the best interests of children to ensure that there is a clear decision-making framework in place.

“Based on these observations, the line is not between regulated and unregulated commercial surrogacy, but rather between rightly regulated commercial surrogacy and both unregulated and wrongly regulated commercial surrogacy,” De Boer-Buquicchio told the Oireachtas committee politicians.

Where surrogacy arrangements allow parentage to be determined pre-birth, even in a well-regulated context, the CRC Committee has observed that laws may be designed in a way to allow for transfer of a child for money.

There may be sale where: 

• A surrogate mother “physically” transfers the child for money,
• Payment for “gestational services” are accompanied by the transfer of the child,
• Intending parents who are genetically linked to the child may participate in child-selling if they ‘pay’ for exclusive parentage and/or physical custody.