Hague Surrogacy Convention Paused After 15 Years — What Went Wrong

After 15 years of work, the Hague Conference on Private International Law has paused its long-running project to create an international convention dealing with surrogacy and legal parentage. That is a significant development for anyone involved in cross-border surrogacy, assisted reproductive treatment, and international family law.

The pause matters because international surrogacy does not stop at the border. Children are born. Intended parents travel home. Questions arise about parentage, citizenship, passports, and legal identity. Without consistent international rules, families can be left navigating a patchwork of conflicting laws.

At the heart of the problem is a divide that proved too deep to bridge. In broad terms, the United States has tended to champion reproductive freedom and reproductive rights. Much of Europe, including countries such as France and Germany, has taken a very different position, often treating the surrogate as the legal mother and opposing surrogacy altogether. Those positions are, in Stephen Page’s words, like oil and water. They do not mix easily.

Why the Hague project mattered

The Hague Conference is the international body responsible for drafting Hague Conventions, the treaties that shape many areas of cross-border private international law. A convention on surrogacy or parentage would have had the potential to bring clarity to one of the most complex areas in modern family formation.

For years, lawyers, judges, policymakers and academics hoped the project might produce a framework that would help countries recognise legal parentage across borders, especially where a child was born through surrogacy.

That is not a theoretical issue. It affects fundamental questions such as:

• Who are the child’s legal parents?
• Will a parentage order or judgment made in one country be recognised in another?
• Can the child obtain nationality, a passport, and secure legal status?
• Will the child’s identity and family relationships be recognised consistently across jurisdictions?

These are not merely adult convenience issues. They go directly to a child’s legal security.

How the project began and how it changed

The Hague Conference commenced this legislative project in 2011. The initial question was relatively narrow: should there be a convention dealing with international surrogacy arrangements?

Early thinking focused heavily on the recognition of judgments. In other words, if a court in one country made a parentage order or similar judgment arising from a surrogacy arrangement, should other countries recognise it?

That approach had logic. It aimed to create a practical mechanism to reduce legal limbo for families moving between countries.

But as work progressed, a major gap became obvious. Not every child born through assisted reproductive treatment is born through a surrogacy arrangement, and not every family has a judgment in hand. If the convention only covered surrogacy judgments, then many other children born through donor conception or other forms of assisted reproduction could be left outside the system.

That prompted a broader reconsideration. The project expanded from a surrogacy-only focus into a larger conversation about private international law concerning children born through assisted reproductive treatment more generally.

At one point, there was consideration of splitting the work into two separate instruments:

• one dealing with surrogacy, and
• one dealing with children and parentage in a broader private international law sense.

Ultimately, the view emerged that separating them risked discrimination. If children born through surrogacy were treated differently from other children born through assisted reproductive treatment, that would create a hierarchy of legal recognition based on the circumstances of birth. The Hague took the position that it should not discriminate against children. That was an important and principled shift.

Stephen Page’s role in the debate

Stephen Page has followed this issue closely since the project began. In 2011, he was asked by the then chair of the American Bar Association’s ART Committee to lead the development of policy on a proposed Hague Convention on surrogacy.

That was no small task. The American Bar Association is not an international body, but it is one of the most influential legal organisations in the world, with around 400,000 members. As Stephen Page observed at the time, when the ABA speaks, everyone has to listen whether they like it or not.

From 2012 to 2016, he led that policy project with Bruce Hale of Boston and other colleagues including Steve Snyder, Rich Vaughn and Dean Hutchinson. What might have seemed at first like a discrete professional task became, in his own account, something that effectively took over his life for several years.

That direct involvement gives weight to his assessment of why the Hague process stalled. This was not a project that failed for lack of effort, lack of expertise, or lack of awareness of the stakes. It failed because the member states could not agree on the underlying principles.

The fundamental divide: reproductive freedom versus prohibition

The central obstacle was not drafting technique. It was ideology and legal philosophy.

On one side, the United States broadly advanced a position grounded in reproductive freedom and reproductive rights. That approach tends to accept surrogacy as a lawful path to family creation and seeks legal mechanisms to protect the resulting parent-child relationship.

On the other side, many European countries have remained deeply sceptical of surrogacy or openly hostile to it. In that approach, the surrogate is often treated as the mother, and surrogacy itself may be seen as contrary to public policy.

France and Germany are frequently cited as examples of that opposition. If some states begin from the premise that surrogacy should be recognised and regulated, while others begin from the premise that surrogacy should not exist at all, it becomes extraordinarily difficult to craft a shared international convention.

That is the tension that ultimately stopped progress.

Why a pause can mean a very long time

The project is now paused. In theory, a pause is not the same as cancellation. In practice, however, Hague projects can remain on hold for years.

To understand how long this could last, it is useful to look at another Hague matter. The organisation is now again looking at a possible convention on the recognition of domestic violence protection orders, a project that had been on hold since 2018. That is an eight-year pause before renewed movement.

So while the surrogacy and parentage project may return, nobody should assume that it will happen quickly. Families dealing with international surrogacy arrangements still need to operate in a world without a unified Hague framework.

What this means for international surrogacy families

The absence of a convention does not just create academic uncertainty. It creates practical risk.

When intended parents enter an overseas surrogacy arrangement, they may encounter very different legal rules across multiple countries, including the country of conception, the place of birth, and the place where they intend to raise the child.

Without harmonised international rules, issues can arise around:

• recognition of parentage orders
• birth registration
• citizenship pathways
• passport eligibility
• immigration status
• inheritance and succession rights
• medical decision-making authority

Most importantly, the burden of legal disagreement usually falls not on policymakers, but on children. That is why Stephen Page’s position remains clear: children should not be punished because of the circumstances of their birth.

The children’s rights argument

Stephen Page argues that any future convention should be clear, child-focused, and centred on the recognition of parentage. That is a position grounded in legal security and basic fairness.

If a child is born through surrogacy, that child still needs stable legal parentage, identity, and protection. Refusing to recognise parentage internationally does not erase the fact of the child’s existence. It simply creates legal vulnerability.

A convention designed properly would not have to endorse every surrogacy practice everywhere. But it could ensure that children are not left stateless, parentless in law, or trapped between inconsistent legal systems.

This is where the debate becomes especially sharp. The United Nations Special Rapporteur on violence against women and girls has taken a strong view that the international recognition of parentage arising from surrogacy should not be recognised. Stephen Page takes the opposite view. In his assessment, refusing recognition fails children.

That disagreement goes to the core of the international impasse. Is surrogacy primarily a women’s rights issue, a children’s rights issue, a reproductive liberty issue, or all three? Different institutions and states answer that question very differently, and those differing answers shape whether legal recognition is extended or denied.

Why recognition still matters, even if countries disagree about surrogacy

One of the strongest arguments for an international framework is that recognition of parentage and endorsement of surrogacy are not exactly the same thing.

A state may object to surrogacy on public policy grounds. But once a child is born, that child still requires legal certainty. The challenge for international law is whether it can separate moral or political disagreement about the arrangement from the practical need to protect the child.

That is why the project’s expansion beyond surrogacy itself was so important. It reflected a broader principle: whatever adults may argue about assisted reproduction, children should not be discriminated against because of how they came into the world.

Where things stand now

For the moment, there is no Hague Surrogacy Convention, and there is no consensus on what one should contain.

The broad position lines remain familiar:

• The US approach: reproductive freedom, reproductive rights, and recognition mechanisms.
• The European approach in many states: the surrogate is the mother, and surrogacy is opposed or tightly restricted.
• The unresolved issue: how to protect children’s legal parentage internationally when states cannot agree on the legitimacy of the underlying arrangement.

That leaves international surrogacy families in a legally uneven environment where specialist advice remains essential.

In Australia, anyone considering cross-border surrogacy should also pay close attention to government guidance and legal requirements. For official information on citizenship and international family arrangements, Australian government resources such as the Department of Home Affairs and the Smartraveller website can be relevant starting points. But general guidance is no substitute for tailored legal advice.

The larger lesson

The Hague project did not pause because the topic was unimportant. It paused because it was profoundly important, and deeply contested.

Cross-border surrogacy sits at the intersection of ethics, family law, public policy, reproductive rights, and children’s rights. Every country brings its own assumptions to that intersection. The result, for now, is stalemate.

Yet the need for a solution has not gone away. Children continue to be born through international surrogacy arrangements. Families continue to cross borders. Legal systems continue to collide. A future convention may still emerge, but if it does, it will need to be sharply focused on one central idea: children need recognition, certainty and protection.

That is the principle worth preserving, even if the politics remain difficult.

About Stephen Page

Stephen Page is widely regarded as Australia’s leading surrogacy lawyer and one of the country’s foremost fertility law experts. He has been deeply involved in international surrogacy policy work, including the American Bar Association’s development of policy on the proposed Hague Convention. His work focuses on protecting families and, above all, securing the legal rights of children born through assisted reproductive treatment and surrogacy.