Assisted reproductive technology and International surrogacy arrangements: Worldwide developments Mia Dambach (Director) International Social Service/International Reference Centre Web: Contact:

International Social Service - Founded in 1924 to help families confronted with problems linked to migration - Network in approximately 120 countries worldwide - Main activities: legal and psychosocial assistance to families, international parental disputes, separated and unaccompanied children, search of origins by adoptees, etc International Reference Centre for the Rights of Children Deprived of their Family/GS - Created in 1997 following the entry into force of the 1993 Hague Convention - Financed by 20 countries - Main activities: Publications (Monthly Review, Country Situations and Factsheets, comparative studies, etc) and replies to requests - Specific projects: assessment missions (Rwanda 2002; Moldova 2006; Kazakhstan, Azerbaijan, Kyrgyzstan 2007; Vietnam 2009; Ivory Coast, Guatemala 2010; Laos 2011; Colombia, Haiti, DRC, Ghana 2013; Tunisia, Armenia, Moldova 2014); legal reforms (Cyprus, Mauritania, Moldova 2008; Ghana 2013); training (Romania 2007; Burkina Faso 2010), etc

Outline 1. Background 2. Opportunities and risks 3. International developments 4. Regional developments 5. National developments 6. ISS and “international principles” 7. Way forward

1. Background - Assisted reproductive technology (ART) - International surrogacy arrangements (ISAs) – Intending contracting parent in one State and surrogate mother in another – Traditional vs gestational surrogacy – Altruistic vs commercial surrogacy - Countries of origin – India, Nepal, Russia, Ukraine, Mexico, USA etc. – New countries/regions such as Africa etc. - Receiving countries – Similar to intercountry adoptions

2. Opportunities and risks - Intercountry adoption numbers falling - Single parents and same sex couples - “Right” to procreate - Lack of regulation at international level - Ethical issues: “human dignity”, consent and origins … - Sale and commodification (gametes, child and sur mothers etc.) - Exploitation and discrimination - Suitability of intending parents - ISA breakdowns and abandonment

3. International developments - UN Committee on the Rights of the Child - Hague Conference on Private International Law - work to focus on parentage and recognition - UN SR on sale, trafficking and exploitation - UN High Commissioner for Refugees – nationality/statelessness - Comparative research - private international law academics, children’s rights experts

4. Regional developments - European Court of Human Rights - Labassée v. France and Mennesson v. France (CSA in USA and civil registry) - Paradiso and Campanelli v. Italy (GSA, 9 month old removed from CIP) - married surrogate, TSA, surrogate mother establishing her legal parentage - Council of Europe draft resolution (47 states, 1949) - EU considering own resolution (28 States, 1993) - “condemns the practice of surrogacy as it undermines human dignity of the woman … ” (EU’s Annual Report on HR and Democracy, Dec 2015) - IACHR, AU and ASEAN

5. National developments - Sweden (Government enquiry recommends total ban) - Australia (ongoing national enquiry/ 30 June 2016) - Thailand (CSA, foreign and same sex couples prohibition, 25 years and related) - Nepal (Exit permits to children born from surrogate mothers from Aug 2015) - India (Draft Bill 2014 prohibits ISA and Ministerial Policy decision 2015 prohibit CSA ) - Mexico (State of Tabasco only allows Mexican nationals, 25 to 40 years and unable ) - China (New Family Planning Law reversed the prohibition on surrogacy) - Serbia (Draft new civil code allows for surrogacy in certain cases) - South Africa (Permitted and certain pre-conditions)

6. ISS and “international principles” - Calls for urgent regulation of ISA and ART (link to ICA) - Understands all arguments for regulation (work and labour laws, exploitation of surrogate mothers/Palermo protocol) - Aligns itself with children’s rights (CRC Committee and Smolin) - Develop international principles (ethics, discrimination, consent, commercialisation, parentage, search for origins, breakdowns etc.) - Outline of 20 principles - Group of experts (multi-disciplinary, UN, government, health, legal etc.) - International approval (HRC, UNGA, PB and CRC Committee)

7. Way forward - ISS not against or for ISA - “Given the underlying purpose of all human rights law in maintaining the inherent human dignity of all human beings, a claimed legal right built upon the sale of human beings must be rejected.” D.M Smolin, Our duty is to act now to ensure that if ISA is practiced it does not result in the “sale of children”