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
ISAs
Few cases
BY AN ACT
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 Specific regulation
ISAs are excluded
Instrument applies to ISAs without specificity
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 + ISAs are 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