New Zealand Law Society - Child rights in international commercial surrogacy

Child rights in international commercial surrogacy

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In our increasingly interconnected world, technological, scientific and social developments push the boundaries of the law in novel and unpredictable ways. International commercial surrogacy (ICS) is one such development where science, technology and family-building intersect.

In ICS, children are born to surrogate mothers in one state, for “commissioning parents” in another state. There is always some sort of payment made by commissioning parents, and it is debateable whether commissioning parents pay for reproductive services (including the surrogate’s involvement), or if this amounts to sale of children.

Commissioning parents may be genetically related to the eventuating child or children, or they might purchase and use donor sperm and/or eggs. That this transaction – involving the intentional creation of new human beings through scientific and human intervention – occurs across international borders complicates matters.

Legal vacuum

Furthermore, a legal vacuum exists at the international level around ICS (unlike with intercountry adoption, there is no international agreement or regulatory regime governing ICS).

Domestically, many laws relating to status of children, parentage and surrogacy have been outpaced by ICS, and these are ill-fittingly applied to regularise ICS situations.

This is certainly the case in New Zealand. ICS cases end up coming before the Family Court by way of adoption applications and clearly the framers of the Adoption Act 1955 did not envisage its application to these scenarios.

Some states – such as Australia and the Netherlands – have parliamentary inquiries under way into surrogacy and domestic legislative and policy approaches to ICS. No such efforts are on the horizon in New Zealand (although Canterbury University’s Rethinking Surrogacy Laws Project will focus on this).

ICS not only presents a legal challenge from the domestic and international law perspectives, but also from a human rights perspective.

ICS jeopardises the human rights of women acting as surrogates and the children who are at the centre of each and every ICS case.

Recently, the cases of the “triplings” born in Mexico to New Zealand commissioning parents, and that of Baby Carmen in Thailand (Carmen’s surrogate mother refused to relinquish her to her Canadian commissioning parents, who then mounted a successful custody challenge in the Thai Family Court) have again, similarly to the case of twins Gammy and Pipah last year, demonstrated ICS’ ability to capture the attention of local and international media.

Children vulnerable

More importantly, these cases further underscore the inherent risks involved in ICS for all parties involved. However, it is the children born through ICS who completely lack agency and voice to advocate for their own rights and best interests, leaving them in positions of heightened vulnerability.

The complexities and challenges of ICS from a human rights perspective first captured my attention in my former role as in-house counsel to government, advising on the first international surrogacy cases involving New Zealand commissioning parents.

Half a decade later, the ICS market has boomed (and gone bust in some states), and as I am finalising my doctoral thesis on this topic, ICS is an ever-more fraught practice, especially for the children involved. My PhD focuses on the rights of children conceived and born through ICS, proposing guidance for protecting their rights and best interests in the face of the international regulatory lacuna.

In ICS, the child’s rights relating to identity, parentage, family environment, health and nationality are most in danger of breach.

Discriminatory actions and decisions that are contrary to their best interests can also disproportionately impact children born through ICS. Unfortunately, these children can end up caught between conflicting domestic laws applying to ICS situations in the child’s state of birth, and those of their commissioning parents’ home state. This can lead, for example, to children being born stateless and legally parentless in ICS for a substantial period of time until solutions can be found, often on an exceptional basis under domestic law and policy.

Because of their multifaceted, cross-border nature and the clash of rights and interests involved, ICS cases are among the most complicated being dealt with by family (and other) lawyers around the world (including New Zealand lawyers).

What can initially present as a family law matter can quickly require lawyers to deal with aspects of nationality and citizenship law of New Zealand and foreign jurisdictions, surrogacy and parentage laws of the relevant states, international human rights law, and conflict of laws principles. This makes for challenging but captivating work, especially given the current state of flux of surrogacy laws and policies in many of the states at the “supply” end of the ICS market, such as India.

Lack of legal clarity

In the face of this lack of legal clarity regarding ICS, international human rights law norms and standards can and should be harnessed by lawyers and judges dealing with ICS cases, to ensure a balancing of competing human rights at stake, and a central focus on the rights and best interests of the child.

The United Nations Convention on the Rights of the Child (UNCROC) is of particular importance, providing minimum standards for protecting the rights of the child, including all those rights made most vulnerable through ICS.

The principle of the best interests of the child (Article 3 UNCROC) should be the guiding principle for all decisions and actions taken in relation to children in ICS. In turn, this should lead to outcomes consistent with the interests of the other main parties involved (the commissioning parents and surrogate mothers).

Of course, at the outset of ICS arrangements and throughout, there is an obligation on all parties involved to take actions consistent with the future child’s rights and best interests. Even before the child is conceived, commissioning parents have a responsibility to research and seek legal advice on their proposed ICS arrangement, so they are fully aware of the legal risks arising. All ICS arrangements carry risks and come with no guarantees.

For example, commissioning parents must ensure they understand the current status of the law of the foreign jurisdiction they seek to undertake surrogacy in, how that will apply to the child once born, and how New Zealand law will view the child.

They should also grow their own understanding of UNCROC, taking actions and decisions giving effect to the future child’s rights. For example, in order to enable the child to preserve their identity under Article 8 UNCROC, commissioning parents should be conscious of their choices regarding the use of anonymous surrogates, anonymous gamete donors, and the child’s future ability to access information about their genetic and health history. In this respect, commissioning parents’ decisions and actions will have a determinative lifetime impact on the rights of the child or children born through ICS.

New Zealand commissioning parents must also ensure their due diligence involves understanding the latest New Zealand government advice on international surrogacy, including the non-binding ministerial guidelines that ministerial decision-makers can apply to ICS situations (for example when considering whether to grant a temporary entry visa for a child born through ICS to enter New Zealand).

Lawyers advising New Zealand citizens and residents on ICS arrangements can play an important role here, by drawing their clients’ attention to current government advice, as well as advising on the applicable New Zealand, foreign and international law.

Future of ICS

In terms of the future of ICS, although some of the states which have been at the forefront of the growth of the practice in recent years (such as Thailand) have or are in the process of shutting it down, the demand for ICS persists, as does the technology and medical expertise to make it happen.

Children will continue to be conceived and born through ICS, with the surrogacy brokers and doctors on the business-side of the equation continuing to exploit legal loopholes in states where ICS services can be quickly relocated, and demand diverted from more expensive or restrictive ICS supply states.

Although global numbers of children born through ICS remain small, these children face potentially profound, lifelong challenges to their rights. International efforts, such as those led by the Hague Conference on Private International Law (involving an international Experts’ Group, of which Margaret Casey QC is a member) and the International Social Service are essential in striving for international agreement on what is ultimately an international challenge, but one with impacts and repercussions close to home, not least for the children growing up as products of this cross-border reproductive revolution.

Although international consensus on such a vexed issue from the legal, ethical and moral perspectives will be challenging to achieve, drawing on the framework of UNCROC, in the interim we must at least be able to agree on minimum standards of protection for the children conceived and born through ICS.

Legal clarity must be a goal for all states involved in ICS, so that there is certainty regarding how parties to ICS – including children – will be treated. Everyone involved in ICS has a part to play in making sure that where ICS continues, it is practised in the most child-friendly manner possible, before conception, during pregnancy and after the child is born.

The rights and best interests of the child must not be allowed to be trampled under the weight of attractive profit margins nor the desire of commissioning parents to build families with children.

To not adequately protect the rights of the child in ICS may mean we see this generation of children asking some very tough questions in 10-20 years’ time, about where and how they were conceived and born, and why more was not done to protect them at a time in their lives when they had no ability to do so themselves.

Claire Achmad has practised as in-house counsel for the New Zealand government, worked for UNICEF Nederland, and as Senior Advisor to the Chief Human Rights Commissioner. Based in Wellington, she completes her Doctor of Laws through the Department of Child Law, Leiden University this year. Alongside her studies, Claire guest lectures on international surrogacy and international human rights law at Auckland University’s Law Faculty, advises the UN Special Rapporteur on the sale of children, child prostitution and child pornography, and is a member of the International Social Service expert group on international surrogacy and the rights of the child.

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