Surrogacy: Will the Hague Convention force the legalization of surrogacy in member states?

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·The Hague Conference on Private International Law has been working for several years to legally regulate parental rights in cases of surrogacy

· In a prepared report, experts stress that in some countries, surrogacy users have difficulty obtaining the child's citizenship and parental rights

· Experts suggest developing an international instrument recognizing foreign court decisions on parentage and unifying regulations

· The issue of surrogacy is not directly regulated in Polish law, but the current national regulations make it possible to state that surrogacy is completely prohibited. 

New Hague Initiative to unify parental rights in surrogacy cases

This year, the Hague Conference on Private International Law decided that a group of experts should be convened to continue its work in the area of unification of private international law issues on surrogacy. Already in 2015, a group of experts was formed in The Hague to study the issue, and meetings have been held twice a year since then. Their work was concluded with a final report in November 2022.

The goal of the new instrument would be to provide greater "predictability, certainty and continuity" of legal parentage in international situations for all concerned, taking into account human rights, including those enshrined in the UN Convention on the Rights of the Child.

In 2017, an expert group report was published, where the possibility of implementing an international birth certificate was suggested. The contents of the report indicate that the Expert Group has adopted a direction towards legalizing surrogacy - although the very contents of the last years' documents (2020-2021) emphasize that none of the work undertaken means that HCCH is "for" or "against" surrogacy.

Despite these assurances, the Expert Group wants to define surrogacy in international law, develop an international instrument recognizing foreign court rulings on parentage, and unify the laws regarding it, suggesting that the illegality of surrogacy be "circumvented" by adoption by non-biological parents, while stressing that it is "the interests of the child that come first."

Experts point out that international surrogacy agreements involving countries where parental rights are inalienable cause difficulties in determining the child's nationality. They also point out that this affects the assignment of parental responsibility for the child or the identity of the person(s) obligated to financially support the child.

In March of this year, the Hague Conference's Council on General Affairs and Policy (CGAP) commissioned the creation of a working group on private international law issues related to parentage, which was essentially a result of their further intentions to create international regulations on surrogacy.

Consequences of a potential Convention

Historically, parentage - as resulting from biological conditions - was stably established in all member states of the Convention - so there was no ambiguity as to who could be classified as the official, legal and biological or adoptive parent of a child - within which there were certain rights and obligations. 

As the authors of the report, "The feasibility of one or more private international law instruments on legal parentage," point out, due to changing "family patterns" and new medical advances that make surrogacy possible, there have been clear difficulties in private international law, as not all convention states recognize surrogacy parentage.

HCCH wants to help alleviate the "difficulties" caused by surrogacy by introducing a new convention, which will ultimately help this business grow. The desire to make legal, the "purchase" of children, and the official parents of those who purchased them, leaving out the biological ones, puts a price tag on human life.

If individual states sign and then ratify the proposed convention, they will, in effect, also have to agree to any potential unknown or outright unethical consequences that support for surrogacy might bring.

The procedure is also not gaining support in international bodies. In none of its rulings to date has the European Court of Human Rights found that the Convention protects the subjective will to become a parent following a surrogacy arrangement. On the contrary, it emphasizes the wide margin of discretion of individual states, which admittedly should provide procedures to legally recognize the bond between the child born by a surrogate and the procurers.

An analysis of the jurisprudence of the Court of Justice of the European Union relating to surrogacy shows that the social rights provided for in EU legislation do not apply to persons "procuring" a child under a surrogacy agreement.

In a 2014 non-binding resolution. the European Parliament condemned the practice of surrogacy, which "undermines a woman's human dignity because her body and reproductive functions are used as a commodity."

Moreover, according to Article 21 of the Council of Europe's Biomedical Convention, reducing a woman's body and fertility to an object of commercial transaction is unacceptable, and under Article 2(a) of the Optional Protocol to the UN Convention on the Rights of the Child of May 25, 2000, surrogacy bears the hallmarks of child trafficking.

The Ordo Iuris Institute monitors the work of the Conference, as Poland, although not a signatory to any of the documents and has not participated in the work on them, is a member of the Hague Conference on Private International Law (HCCH), and the EU is also involved in the work of the Conference.

Unlike adoption, it is difficult to conclude without a shadow of a doubt that surrogacy is in the best interests of the child. By definition, "surrogate pregnancies" involve complete separation between surrogate and newborn, while research confirms that even the earliest attachment between child and parent is important for the child's long-term development. There is also a link between a mother's weak attachment to her child before birth and the children's later behavioral problems. Due to contractual obligations, the surrogate mother is often less emotionally attached to the child she is carrying in order to cope with the expected separation. - Iga Malinowska, of the Ordo Iuris Center for International Law, commented.