We must protect the most vulnerable person in international commercial surrogacy.
In 2014 the international spotlight has turned with full-force on international commercial surrogacy. The reality of children being born this way and the potentially devastating consequences of babies being abandoned and stateless has shocked our collective consciousness.
Such was the case of Baby Gammy, born with Down syndrome and left in Thailand with his surrogate mother by commissioning parents David and Wendy Farnell. His story confronted us with the often disturbing reality of the international commercial surrogacy industry. It provides on-demand, made-to-order children allowing commissioning clients to circumvent the often prohibitive laws on commercial surrogacy in their home countries. It is a high risk, high stakes transaction for all involved.
Through Baby Gammy and more recently, the situation of a twin-child left in India by Australian commissioning parents (which senior Australian judges have spoken out on, saying it may amount to child-trafficking) we have witnessed the heightened vulnerability of children born this way.
When I began working on international surrogacy issues in 2010, little public awareness existed that people from Australasia were having children in places such as India and Thailand through surrogate mothers, sometimes using the eggs or sperm from third parties in other countries. Fast-forward to 2014, and times have somewhat changed. Far less explanation is necessary about what international surrogacy is and what it entails. However, reactions still range from the morally outraged, to a permissive ‘why not?’ attitude.
Yet despite more community understanding – ignorance surrounding the ethical, legal and human rights challenges triggered through the practice persists. This gap means positive action to protect children in international commercial surrogacy in a comprehensive and systematic manner is seriously lacking.
The United Nations Convention on the Rights of the Child (CRC), states all children have rights to nationality, birth registration, preservation of their identity, to be cared for in a family environment, know their parents, not be discriminated against and not be sold or trafficked. Children with disabilities have additional particular rights.
Children born through international commercial surrogacy are routinely at risk of these rights being violated. Indeed, many children born this way have ended up stateless and stranded in their birth country (for example, Baby Manji, Baby Samuel Ghilain, the Balaz and Volden twins), without legal status and legally recognised parents (as in the Mennesson and Labassee cases, recently adjudicated by the European Court of Human Rights), or abandoned, devoid of a family environment.
The vast majority of children born through international commercial surrogacy face difficulties in preserving aspects of their identity, due to the involvement of anonymous genetic donor parents, surrogate mothers, and the fact they are born with the intention of being supplanted into another country and culture. Arguably, international commercial surrogacy is a market in which children are bought and sold – commodities at risk of trafficking. This raises the question of whether this is a practice which can ever be consistent with our internationally agreed ban on the sale of children.
However, international commercial surrogacy shows no sign of waning; in India alone, the surrogacy industry is reportedly worth between 450 million and 2.3 billion USD and continues to grow. People from Australia and other developed countries continue driving demand, despite the many cautionary tales of what can and sometimes does go wrong.
We must agree, at national, regional and global levels that the child and protection of their rights must be at the heart of our approaches to dealing with international commercial surrogacy. A starting point for achieving this is the protection framework provided by the CRC, including the principle of the best interests of the child.
The CRC framework should inform the development of national legislation and policy regulating international commercial surrogacy (immediate, short-term goal), as well as an international regulatory framework (long-term goal). National and international efforts must make human rights protection their core focus. Better national legislation and international agreement is urgently needed to deal with currently conflicting national laws and protection gaps jeopardising the child’s rights.
Placing central focus on the child does not mean that the rights and interests of other people involved in international surrogacy situations are not at risk. They are and require protection too. The human rights of women acting as surrogates are particularly important.
We must act now to prevent international commercial surrogacy from developing further as an international human rights problem affecting a new generation of children and those who bring them into the world. The legal, cultural and health issues raised by international commercial surrogacy – including the rights of the child – were discussed at a public Forum on reproductive cross-border travel in Asia organised by La Trobe Law School and La Trobe Asia.
Bringing together multidisciplinary perspectives on international surrogacy, the Forum engaged with the complex and often controversial questions raised by cross-border reproduction. It provided a timely opportunity to take stock of our current situation and develop ideas for a better approach protecting those most vulnerable in international commercial surrogacy. In particular we must focus on the child, born into a situation of significant human rights risk through no fault of their own
Claire Achmad is a barrister and solicitor of the High Court of New Zealand, currently undertaking doctoral studies on international commercial surrogacy and the rights of the child through the Department of Child Law, School of Law, Leiden University, the Netherlands. She can be contacted at email@example.com or @ClaireAchmad on Twitter. This article can be republished with attribution under a Creative Commons Licence.