The Work of the Hague Conference on Surrogacy and International Initiatives

1. THE WORK OF THE HAGUE CONFERENCE ON SURROGACY AND OTHER INTERNATIONAL INITIATIVES Cambridge, 27 and 28 June 2019 Dr Michael Wells-Greco Charles Russell Spechlys (London and Geneva) Masstricht University

2. The Parentage/Surrogacy Project • The need for this Project • The mandate given by Council in March 2015, is to consider the “feasibility of advancing work” on the “[p]rivate international law issues surrounding the status of children, including issues arising from international surrogacy arrangements [ISAs]” • Focus is on issues of parentage and the civil status of children generally, of which ISAs are a subset

3. The Surrogacy/Parentage Project • AIM: Cross-border continuity of legal parentage ….however such legal parentage is established • METHOD by which this aim is achieved …which may involve different PIL techniques

4. Establishment of legal parentage General PIL Most of the cases BY OPERATION OF LAW General PIL Some cases ISAs Few cases BY AN ACT ISAs Few cases General PIL Difficult cases, but not common BY (JUDICIAL) DECISION ISAs Most cases PUBLIC DOCUMENTS

5. Important disclaimers • Any approach suggested by the PB should NOT be understood as an endorsement of surrogacy • BUT as a mechanism for addressing limping parentage resulting from ISAs • With the overriding objective of PROTECTING THE BEST INTERESTS OF THE CHILD • How to ensure this in practice??

6. Five Expert Group meetings to date – main C&Rs “7. Council welcomed the reports of the Experts’ Group. It endorsed the continuation of the work in line with the latest report of the Experts’ Group and noted that most Experts recommended that future work focus on developing both: • a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and • a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements.”

7. Consensus? • HCCH has not been shy of confronting legal issues which are politically sensitive • But diverse approach of States to questions concerning legal parentage • Co-operation must be based on a minimum core of shared values: fundamental shared principles

8. Options • General PIL instrument on legal parentage • ISAs are excluded • General PIL instrument on legal parentage • Instrument applies to ISAswithout specificity • General PIL instrument on legal parentage • Specific provisions for ISAs • Specific provisions for ISAs in a Protocol or Chapter • Specific regulation • Ex post – as conditions / grounds for not recognition • Ex ante – cooperation system

9. 1. General PIL instrument on legal parentage+ ISAsare excluded Consensus needed on: • Direct or indirect grounds of jurisdiction • Specific regulation • Ex post – as conditions / grounds for not recognition – cooperation system? • Ex ante – cooperation system? • Restricted to Contracting States only? • Incidental questions on legal parentage • Cases where there is no judicial decision on legal parentage? Presumption of validity of legal parentage recorded in a public document?

10. (Optional) Protocol on ISAs Pros: • A way to achieve consensus?? • Recognition based on a trustworthy procedure with safeguards for ISAs • A priori cooperation framework: safeguards and procedures are verified before birth, and then, if respected, guarantee the recognition • Cooperation to respect the different positions of States Cons: • Many do not want a system with Central Authorities and many controls • Not all children treated equally • Some may see cooperation as facilitating??

11. (Optional) Protocol on ISAs (cont.) States that might favour this approach: • States in favour of ISAs : facilitates recognition with guarantees • States against ISAs that could tolerate having a Protocol for States that want a framework for ISAs States that might oppose this approach: • States against ISAs that do not want any regulation that could facilitate ISAs • States that do commercial ISAs and fear a more restrictive framework

12. (Optional) Protocol on ISAs Consensus needed on: • Policy aims • Material scope: all surrogacy arrangements? • Direct or indirect grounds of jurisdiction • Specific regulation • Ex post – as conditions / grounds for not recognition; and/or • Ex ante – cooperation system

13. Other options? • Uniform applicable law + jurisdictional filters + safeguards • Recognition of legal status + jurisdictional filters + safeguards • General PIL instrument on legal parentage + specific provisions for ISAs?

14. ISS proactive response “international principles” • Calls for urgent regulation • Aligns itself with children’s rights (CRC Committee and UN SR on sale) • ISS drafting expertise on international principles (Hague Conventions, AC Guidelines, over 30 countries’ technical assistance project etc.) • Group of experts (multi-disciplinary and regional) • Cambodia, Geneva, Hague, Israel, Verona, Zurich etc. • 2019/2020 Consultations – Cambodia, South Africa, Georgia/Ukraine, Latin America

15. Possible DGD on children’s rights in the age of biotechnology • Prenatal testing • Third party reproduction • Cryopreservation • Possible discussions on children’s rights • protection from discrimination • role of best interests • right to a child / procreate • protection from sale and exploitation • access to origins and identity