UN Special Rapporteur calls for the “eradication” of all surrogacy
The United Nations Special Rapporteur on Violence Against Women and Girls, Ms Reem Alsalem, has called for the “eradication” of all surrogacy in her report to the United Nations General Assembly “The different manifestations of violence against women and girls in the context of surrogacy”.
In her key conclusion, the Special Rapporteur says:
“The practice of surrogacy is characterized by exploitation and violence against women and children, including girls. It reinforces patriarchal norms by commodifying and objectifying women’s bodies and exposing surrogate mothers and children to serious human rights violations.”
In forming this view, the Special Rapporteur spoke at the Pontifical University of Rome in early 2024, calling for a ban on all surrogacy, at an anti-surrogacy conference supported by the Catholic Church. This was shortly after the late Pope called for the banning of all surrogacy because it was “deplorable”.
In preparation for her report, the Special Rapporteur called for submissions from civil society about surrogacy and its impact as to violence against women and girls. Most of the submissions were from anti-surrogacy advocates.
I was privileged to write the submission from the Fertility Society of Australia and New Zealand.
Questions 1 to 3 by the Special Rapport and their responses from the Fertility Society were:
“1. What specific forms of violence are women and girls subjected to in the context of surrogacy?
FSANZ is not aware of any in surrogacy in Australia and New Zealand.
2. How prevalent is the exploitation of women and girls in the practice of surrogacy?
FSANZ is not aware of any exploitation of women and girls in surrogacy in Australia and New Zealand. Surrogacy in Australia and New Zealand is subject to independent judicial oversight. Concerns about Australian surrogates not being reimbursed all their expenses are the subject of the current review.
3. To what extent does surrogacy intersect with human trafficking, including for the purposes of exploitation, sale of children, or forced reproductive labour?
Surrogacy does not intersect with human trafficking in Australia and New Zealand.”
After the various submissions were made, the Special Rapporteur’s office held two closed door meetings to obtain further information.
I took part in one of those. Most of those in attendance were anti-surrogacy advocates. As far as I am aware:
- I am the only parent through surrogacy that the Special Rapporteur talked with.
- I am the only lawyer who practises in surrogacy law that the Special Rapporteur talked with.
- The Special Rapporteur did not talk with any fertility specialist who had ever undertaken surrogacy.
- The Special Rapporteur did not talk with any surrogate.
- The Special Rapporteur did not talk with any child born from surrogacy, many of whom are now adults.
While I cannot say what others spoke of in the closed session, I can say what I said. I spoke of my surrogacy journey. I said that my daughter was conceived through surrogacy in Australia in an altruistic surrogacy journey and from known egg donation. I said that the journey while a difficult medical journey was full of love. The surrogate and the egg donor to my husband and me became the surrogate and egg donor because they offered. They were not coerced.
I held my daughter immediately upon her birth. There was much love in the room. A court order was made with the consent of our surrogate recognising my husband and me as our daughter’s parents. Until that point there was a legal fiction that our surrogate was her parent.
From 18 months old, my daughter has been told in an age appropriate manner that she was born through surrogacy and from egg donation. Both our surrogate and our egg donor remain part of her life today.
There was no violence, coercion or trafficking.
My daughter is thriving. Our home is full of love. She is very happy and is doing well at school. She has a charmed life.
That message was completely ignored by the Special Rapporteur. Based on what the Special Rapporteur suggests, surrogacy is akin to prostitution and should be “eradicated”.
The Special Rapporteur only listened to those who echoed her views. She ignored the submission I made on behalf of the Fertility Society that “any attempt to prohibit surrogacy is unlikely to succeed, even with the intention to police bedrooms.”
I know this because I come from Queensland. In 1988, Queensland legislated to ban all surrogacy here and yon, commercial, altruistic, gestational, traditional, the lot, both in Queensland, and the first in the world to ban everywhere else, if done by Queensland residents.
The ban did not work. My first surrogacy case was in 1988, at the time of the ban. Surrogacy continued in Queensland, but underground.
The Special Rapporteur also ignored international jurisprudence that there is a right to access assisted reproductive technology, as held by the European Court of Human Rights and the Inter-American Court of Human Rights, and a right to access surrogacy as held by the Inter-American Court of Human Rights and the Supreme Court of Mexico. She ignored these holdings because they did not suit her cause.
The Special Rapporteur chose to ignore, or was so disconnected that she did not know, of the recent Tokyo Declaration issued by the International Federation of Fertility Societies in April which said:
“Access to fertility education, reproductive care, clinical assessment, diagnosis, and/or treatment (and associated practices) should be available to everyone who wishes to form a family that includes children….
Access to reproductive care, clinical assessment, diagnosis, and/or treatment (and associated practices) should never involve exploitation or human trafficking of the parties involved. This includes prohibiting exploiting and/or trafficking potential parent(s), surrogates, gamete donors, and/or the people born as a result of such practices and requires protection of vulnerable people and/or populations.
Recognizing, respecting and supporting that most countries choose to prohibit surrogacy or limit its practice (for example, to altruistic arrangements, prohibition of commercial surrogacy, and or limiting practices to people domiciled within a particular jurisdiction); when surrogacy is practised, appropriate screening of intended parents and independent legal advice and counselling should be required and available for each party independently of each other, from the antenatal interval through the postnatal period, in a language that each of the parties understands, at a level the parties comprehend, and independent of clinics or agents. A freely chosen support person, for each party, should be permitted at any time.”
She also chose not to attend (or is so disconnected that she was not aware of) the International Surrogacy Forum in Cape Town in March, where the latest research about surrogacy and current legal trends were discussed[1]. Nor did she attend the previous International Surrogacy Forums held in 2023 in Copenhagen or in 2019 in Cambridge.
Since 2011, the Hague Conference on Private International Law has sought to legislate an international instrument covering international surrogacy arrangements. I said that any international instrument should be “undertaken by [the Hague] , which has clear expertise in this area, and has been working on this project since 2010, with assistance from UNICEF, [International Social Services] and the [International Academy of Family Lawyers]. Any such convention will likely have wide application. [The Hague]’s work should not be duplicated or subverted.”
Instead, the Special Rapporteur has chosen the impossible route- the one where surrogacy is sought to be eradicated and to subvert the work of The Hague.
She seems intent on denying cancer survivors to ever become parents, by this statement:
“Oppose the recognition of surrogacy arrangements, including those undertaken abroad, as conferring legal parentage upon any person genetically unrelated to the child while ensuring that decisions concerning the establishment of parental relationships are prioritized. In the interim, treat the children born through surrogacy that are left behind by their birth mother as unaccompanied minors to be placed in alternative care pending adoption, with priority given to family-based solutions. When deemed in the best interests of the child born through surrogacy, the partner of the biological father could be allowed to adopt the child, thereby avoiding the normalization of surrogacy and maintaining the original parentage”.
Therefore, a single woman who has had leukaemia, uterine or cervical cancer and as a result has been robbed of her fertility will, in the Special Rapporteur’s eyes, never be fit to be a parent.
That approach flies in the face of what the International Commission of Jurists and international human rights experts said in the Yogyakarta Principles about the right to found a family:
“Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.
States shall:
a) Take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation or gender identity;
b) Ensure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration.”
Or as the Mexican Supreme Court said in a case cited by me[2] to the Special Rapporteur:
“The concept of family… is not identified or limited to a special type of family, but in the context of a democratic State of Law in which respect for plurality is part of its essence, it must be understood that the constitutional norm is the family as a social reality, which is why it protects all its forms and manifestations as an existing reality…
Regarding the right of every person to decide freely, responsible and informed about the number and spacing of their children, must be considered to fall within the scope of freedom and private life of people, regarding which there should be no arbitrary interference by the State, in which it remains understood the right to decide to procreate a child.”
And the final word? The Special Rapporteur also ignored this statement by the International Womens’ Health Coalition and Human Rights Watch about surrogacy in 2019, quoted by me to the Special Rapporteur:
“There are risks of abuse in surrogacy. The solution to this problem is not to ban surrogacy, but for surrogacy to be practiced under a framework based in international human rights law, incorporating the rights of the child, surrogates and potential surrogates, and people seeking to become parents through use of surrogacy and other forms of assisted reproduction.”
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[1] I am co-founder of the Forum.
[2] Amparo in review 553/2018 at [4], [6].
