Ms Maud de Boer-Buquicchio:

I thank the Chair for allowing me to address this meeting of the Oireachtas Joint Committee on International Surrogacy. It is an honour for me to share some considerations with regard to the regulation of surrogacy. Surrogacy is increasingly used as a means of family formation, including in cross-border situations. The interests of multiple stakeholders are often prioritised over children born from surrogacy, to the detriment of their rights in the UN Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. These rights include among others, the right to non-discrimination, identity, nationality and the child’s best interests being the primary consideration. It equally includes the right of the child to not be sold, which is defined in Article 2(a) of the optional protocol as, "any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration".

The issue of surrogacy is complex due to diverse views. Some believe there is a broad right to procreate that should be available to all without discrimination and that prohibiting surrogacy would create underground markets. Therefore, regulation is necessary to create safe surrogacy practices that would effectively balance the rights and interests of all. Others are of the view that any regulation of surrogacy, including prohibition

of sale alone, would nevertheless lead to legalised markets in children.

We can at least agree that all situations that lead to the sale of children should, as a minimum, be prohibited, many of which I have identified in my report to the Human Rights Council in 2018 when I was the UN special rapporteur on the sale and sexual exploitation of children. To complement this report, I prepared a study on safeguards for the protection of the rights of children born from surrogacy, submitted to the UN General Assembly. The UN Committee on the Rights of the Child has also pinpointed specific country situations when examining states parties when sale may occur.

In 2021, the Verona principles for the protection of the rights of the child born through surrogacy were launched. Principle 14 deals with the prevention of the sale, exploitation and trafficking in children. In 2022, UNICEF and Child Identity Protection, an NGO of which I am the president, published a briefing note on children’s rights and surrogacy. It notes that:

Children are at greater risk of being sold in commercial surrogacy arrangements. Sale and trafficking of children born through surrogacy is occurring, especially in [international surrogacy arrangements] ISAs, due to a lack of protective safeguards being implemented by States.

Based on these observations, the line is not between regulated and unregulated commercial surrogacy, rather between rightly regulated commercial surrogacy and both unregulated and wrongly regulated commercial surrogacy.

Sale can occur in both regulated and unregulated contexts. The first is when surrogacy arrangements occur in a legal vacuum where market forces prioritise profit. The second is when surrogacy arrangements allow parentage to be determined pre-birth. Even in a well-regulated context, such as in some states in the United States, the Committee on the Rights of the Child has observed that laws may be designed in a way to allow for transfer of the child in exchange for remuneration or any other consideration.

The third is when the surrogate mother physically transfers the child for remuneration or any other consideration, there may be sale. Payment for her gestational services is accompanied with the transfer of the child. The fourth is when intending parents are genetically linked to the child they may participate in child selling if they pay for exclusive parentage and physical custody, or both.

I would like to make a number of recommendations emerging from these studies on the regulations needed to uphold all children’s rights in surrogacy arrangements, including the need to prevent the sale of children. By definition, altruistic surrogacy cannot lead to the sale of children as a gratuitous act. To avoid sale in these situations, reimbursements should be itemised and reasonable, or both, in order to avoid any potential disguise of payments for transfer of the child. While regulation is helpful, it should not allow for legally binding contractual relationships between the surrogate mother and the intending parents established pre birth where the transfer of the child, physical and legal, or both, is dependent on any payment or any other consideration. This can occur in situations where, for example, the surrogate mother may receive all payments and still have a reflection period post birth. When safeguards are not fully aligned with the child’s rights in the UN Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child, a post-birth best-interest determination, BID, should be conducted. If sale occurs, both the immediate needs of the child and long-term considerations should be factored in. Careful attention should be given to how the children may feel when they are older if their intending parents participated in the sale and that the state nevertheless placed him or her with them. For ISAs, particular attention should be paid to the risk of statelessness. All states, including Ireland, must ensure that any laws that may be relevant to surrogacy are clear on the prevention of the sale of children.