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Too little attention for children’s rights in international commercial surrogacy

The rights of children born through international commercial surrogacy are at risk of being overlooked or even violated. Lawmakers, judges and commissioning parents should be more aware of this and take protective action throughout the surrogacy procedure. This is the conclusion reached by lawyer and PhD candidate Claire Achmad. PhD defence 26 June.

When working as a lawyer for the New Zealand government, Claire Achmad advised on the very first cases of New Zealand citizens and residents involved in having children through international commercial surrogacy (ICS) abroad. These cases were very challenging, since there hadn’t been many cases before and because of the many different angles to the practice, including from moral, ethical, legal and sociological perspectives. ‘But what stood out for me was that at the centre of every instance of ICS was a child or children, and from a human rights perspective, they were vulnerable to their rights being overlooked and infringed.’ 

Practice outpacing the law

There are no international laws or agreements on the practice of ICS, and research on the subject is still developing, since it is a relatively new practice. With her PhD research, Achmad has helped to fill that gap. ‘ICS has been developing rapidly over the last few years, leading to many problems for children and families, as well as for states and legal professionals.' Take for example the baby boy named Gammy born in Thailand through ICS. When he was born with Down Syndrome, his Australian commissioning parents left him in Thailand and only followed through on the ICS arrangement by taking responsibility for his healthy twin sister. Or several children who have been stranded stateless in India because of the differences in nationality laws between India and the state of their commissioning parents. Achmad: ‘ICS is a classic example of how social and technological practice can outpace the law.’ 

Children’s rights at stake

Like every child, children born through ICS are entitled to the full range of rights under the United Nations Convention on the Rights of the Child (CRC). However, children’s rights are often at risk in ICS, because of the many parties involved in the process, too little focus being placed on the child, a lack of international regulation, and conflicts and a lack of clarity in domestic laws and policies on surrogacy. In the case of baby Gammy in Thailand, arguably his right to grow up in a family environment was violated. And the children rendered stateless in India have the right to a nationality, just like every other child in the world. ‘To prevent cases like this and to promote and protect children’s rights, protective steps need to be taken in the ICS process, not just once the child is born, but also in the prenatal and even preconception phase,’ Achmad states.

Protective steps need to be taken in the ICS process, not just once the child is born, but also in the prenatal and even preconception phase

Uphold the UN Convention

In her mainly legal-theory-based study, Achmad explored the main challenges to children’s rights in ICS, and how the UN Convention on the Rights of the Child (CRC) provides a way to protect and uphold these rights. ‘I concluded that more can be done to protect these children. The CRC should be better implemented in this context, and Convention duty-bearers should take decisions and actions which uphold the rights of ICS children.’ Based on her research, Achmad has drawn up a framework of recommendations. ‘These focus on protecting children’s rights in ICS, and balance the rights of the core parties to ICS arrangements.’ Achmad’s recommendations are practical, for example suggesting how states can work together to make sure no child is left stateless through ICS, and how CRC state parties and the parents of ICS children can actively help children to preserve their identity consistent with Article 8 of the CRC (the right to identity preservation).

International agreements

The practice of ICS is continuously changing, and has even evolved during the course of Achmad’s research. For example, some countries have now closed down ICS markets through legislation, and there are various international initiatives underway to try and address ICS. Achmad hopes that her recommendations can provide helpful guidance to ensure that children’s rights are better protected. She suggests that her framework could be used by the UN Committee on the Rights of the Child as the basis for a general comment regarding the rights of children in ICS. ‘Governments, law-makers, policy-makers, decision-makers, medical, legal and social work professionals: they all struggle with the complex nature of ICS,’ says Achmad. ‘The results of my research are directly relevant and applicable in practice, for states, professionals involved in ICS, and for commissioning parents. This is especially important, because children’s rights are all too often still overlooked in ICS.’

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