A Preliminary Report1 on the issues arising from international surrogacy arrangements

I. INTRODUCTION
1. In April 2011, the Council on General Affairs and Policy of the Conference
(hereinafter, “Council”) welcomed the report prepared by the Permanent Bureau on the  “Private international law issues surrounding the status of children, including issues  arising from international surrogacy arrangements”.
This report identified the serious  problems occurring internationally as a result of the increasing use of international  surrogacy arrangements, the most prevalent issues being the often uncertain legal  parentage and nationality of the children born. Children may be “marooned, stateless  and parentless”
in the State of their birth, with their families resorting to desperate,
sometimes criminal, measures to attempt to take them “home”.
Further, if they are able to travel “home”, children may be left with “limping” legal parentage, with the consequent child protection concerns that this involves. These and other child protection issues arising as a result of such arrangements
implicate the fundamental rights and interests of children, including the right not to suffer adverse discrimination on the basis of birth or parental status, the right of the child to have his or her best interests regarded as a primary consideration in all actions concerning him or her, as well as the child’s right
to acquire a nationality and to preserve his or her identity.
Attention should also be given to the possible vulnerability of all parties to international surrogacy arrangements, raising concerns regarding exploitation and the difficulties which may arise as a result of  unregulated intermediaries,
including the trafficking of women and children, as well as
concerns regarding “independent” arrangements. 2. International surrogacy arrangements are growing at a rapid pace and,  unfortunately, so too appear to be the difficulties arising from them. In the past year alone, problems concerning the legal status of children born as a result of such arrangements have arisen in many States across the globe. In addition, more cases have come to light which demonstrate starkly the possibilities for exploitation and abuse.
3. Council, in April 2011, requested that the Permanent Bureau intensify work, “with emphasis on the broad range of issues arising from international surrogacy
arrangements”. In accordance with this mandate, the Permanent Bureau has
undertaken further research on comparative developments relating to international
surrogacy in internal and private international law, as well as on the practical needs in the area. The Permanent Bureau has also been closely monitoring developments and work being undertaken by other organisations and institutions in the field and is continuing to work in co-operation with Aberdeen University. The fruits of these efforts are combined in this Preliminary Report which, as requested, provides an update on progress to Council,16 but does not purport to present a complete picture on this dynamic and complex subject. Subject to the Council’s view, the Permanent Bureau intends to produce a Final Report in April 2013 which will incorporate the views of Members expressed at the 2012 Council meeting and beyond.

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