I came across this from 2018 from the UN (it’s a report to the Office of the high commissioner on human rights), IANAL so my understanding of it is limited, but it looks very interesting. Can any lawyers explain what force this UN report would carry?
This report is arguing for legal reform too, but from a radically different child-focused and woman-focused perspective. It was so unexpected to find this, I feel quite emotional reading it:
www.ohchr.org/EN/Issues/Children/Pages/
During the 37th session of the Human Rights Council in March 2018, the Special Rapporteur Maud de Boer-Buquicchio presented her thematic report on surrogacy and the sale of children.
Some key recommendations from the report
Adopt clear and comprehensive legislation that prohibits the sale of children, as defined by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in the context of surrogacy;
Create safeguards to prevent the sale of children in the context of commercial surrogacy, which should include either the prohibition of commercial surrogacy until and unless properly regulated systems are put in place to ensure that the prohibition on sale of children is upheld, or strict regulation of commercial surrogacy which ensures that the surrogate mother retains parentage and parental responsibility at birth and that all payments made to the surrogate mother are made prior to any legal or physical transfer of the child and are non-reimbursable (except in cases of fraud) and which rejects the enforceability of contractual provisions regarding parentage, parental responsibility, or restricting the rights (e.g. to health and freedom of movement) of the surrogate mother
Create safeguards to prevent the sale of children in the context of altruistic surrogacy, which should include, where altruistic surrogacy is permitted, proper regulation of altruistic surrogacy (e.g. to ensure that all reimbursements and payments to surrogate mothers and intermediaries are reasonable and itemized and are subject to oversight by a court or other competent authority, and that the surrogate mother retains parentage and parental responsibility at birth );
Ensure that in all parentage and parental responsibility decisions involving a surrogacy arrangement, a court or competent authority makes a post-birth best interests of the child determination, which should be the paramount consideration ;
Closely regulate, monitor and limit the financial aspects of all surrogacy arrangements, with a requirement for full disclosure of the financial aspects of all surrogacy arrangements to the court or competent authority reviewing the surrogacy arrangement;
Regulate all intermediaries involved in surrogacy arrangements, in regard to the financial aspects, relevant competencies, use of contractual arrangements, and ethical standards;
Protect the rights of all surrogate-born children, regardless of the legal status of the surrogacy arrangement under national or international law, including by protecting the best interests of the child, protecting rights to identity and to access to origins, and cooperating internationally to avoid statelessness;
Ensure that any international regulation developed in regard to surrogacy, or in regard to legal recognition of parentage in international surrogacy arrangements, focuses on both private international law and public international law, providing in particular for the protection of the rights of the child, of surrogate mothers and of intending parents, and recognizing that there is no “right to a child” in international law;
Encourage other human rights mechanisms, such as the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women, and United Nations entities to contribute, with further research, to discussions on surrogacy and its impact on the human rights of women and other stakeholders concerned, in order to develop human rights-based norms and standards and prevent abuses and violations.