The Hague Conference and Gestational Surrogacy: an Eloquent Impasse

03/02/2023

The Hague International Conference on private rights has for years been working on gestational surrogacy – a practice which remains prohibited in many nations – with a serious objective: the elaboration of international agreements to “control” the consequences, in particular regarding filiation. The stated failure which it announced recently demonstrates that one cannot resolve problems associated with an intrinsically questionable practice, without calling it into question.

The Hague Conference is an inter-governmental organisation which elaborates international conventions and which currently associates some 90 nations, including France. It is well known for its work on the 1993 Convention for international adoption.

Since 2015, – “Under pressure from a few governments and, probably also, from a few companies specialising in that type of trade” – as analysed by the “Juristes pour l’Enfance (Lawyers for children)” association, it has created a working group on gestational surrogacy. It is titled “Filiation/Substitute motherhood” and consists of civil servants from the ministries of justice, lawyers, academics and associations which are mere “observers” such as Unicef.

Its members have studied various legislations and have met a dozen times. Their initial objective was to elaborate “international agreements” aimed at an international recognition of filiation. In other words, to determine under which filiation conditions children born by gestational surrogacy in one nation could be recognised in another nation. For example, a child born from a surrogate mother in some states in the United States can hold a birth certificate which mentions under “mother” the person known as the “mother of intention” and not the one who bore and gave birth to the child. It is therefore a false certificate, which does not reflect reality and which is not recognised by other nations.

Gestational surrogacy is a serious infringement to the principle according to which the human body cannot be the subject of contracts. Whether “commercial” or “gratuitous”, the practice is contrary to the superior interest of the child and exploits the body of women. Its toleration, in any form whatsoever, is tantamount to acceptance of the mechanisms for the exploitation of women and children which it involves. Not to mention that it represents a market of several million dollars. Consequently, the achievement of such agreements would result quite simply in creating an international convention on gestational surrogacy. “A true blank cheque for the world trade of surrogate mothers in the poorest nations of the world” as denounced long ago by CIAMS, a grouping of feminist associations which militates for the abolition of gestational surrogacy.

However, since 2021, the mandate of the working group has been reduced. It has merely been asked to provide an evaluation of the possibility of elaborating such agreements. At the end of 2022, its conclusion was released: It recommended the creation of a working group in order to better study the political considerations and decisions concerning the scope, the content and the approach of any new agreement. In fact, the working group has resulted in a recommendation to create a working group…. According to “Juristes pour l’Enfance”, this is a “blatant admission of failure”.

It demonstrates the impossibility of defining universal rules for the authorisation of gestational surrogacy. The problem is not to resolve the consequences of gestational surrogacy with respect to filiation, but in fact its total prohibition. Getting to a dead end is a clear statement that it is time for an about turn. The only reasonable way out is indisputable: To work towards the worldwide abolition of gestational surrogacy. This measure is of critical urgency and on which Alliance VITA has been alerting for many years.

For more information:

Deconstruction of “ethical” gestational surrogacy, VITA 2021
[Video] –VITA Webinar “The reality of gestational surrogacy”
Alliance VITA bioethics file

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