CRIN Submission For The Report Of The UN Special

crin submission for the report of the un special rapporteur on the sale and sexual exploitation of children to the un general assembly on

CRIN submission for the report of the UN Special Rapporteur on the
sale and sexual exploitation of children to the UN General Assembly on
safeguards for the protection of the rights of children born from
surrogacy arrangements
This contribution is based on CRIN’s discussion paper ‘A Children’s
Rights Approach to Assisted Reproduction’ published in May 20181 and
responds to the questionnaire providing the safeguards that a child
rights approach would recommend; these are based on international
standards as established by the Convention on the Rights of the Child
(‘the Convention’) itself or by the relevant general comments and/or
recommendations that the Committee on the Rights of the child (‘the
Committee’) has provided to States parties in that regard.
Whenever possible, this questionnaire has been answered taking
concrete examples of legislative, judicial and administrative
procedures in place in States parties to the Convention.
Identity, origins and parentage
*
Describe safeguards protecting identity rights (CRC art. 7 and 8)
that are currently being implemented in your State. Safeguards
include laws, judicial and administrative procedures, enforcement
actions, and other practices intended to prevent or remedy
violations of human rights norms. Note whether and how such
general safeguards protecting identity rights apply in the context
of surrogacy arrangements.
Registering each child and making sure they have a name, a nationality
and their parentage established in law are core elements of all
individuals' identity. Without them, children remain invisible into
adulthood: they have no legal identity, no voice and are at greater
risk of other rights abuses.
Article 7 of the Convention sets out children's right to be registered
immediately after birth, the right to a name, a nationality and - as
far as possible - to know and be cared for by their parents. It
requires States parties to fulfil these rights in accordance with
other national and international obligations, especially where
children would otherwise be stateless.
This article is closely connected to article 8 which protects
children's right to preserve their identity, including their
nationality, name and family relations, without unlawful interference.
In addition, States are required to help children regain any aspect of
their identity that has been taken away from them illegally.
Furthermore, the CRC recognises that “the child, for the full and
harmonious development of his or her personality, should grow up in a
family environment, in an atmosphere of happiness, love and
understanding”.
Right to a nationality
In many cases, the status of children born of third-party reproduction
is left unclear, and in some cases they may not be recognised as
citizens of any of the countries with which they have a connection.2
The Committee on the Rights of the Child has confirmed that decisions
about nationality fall within the scope of CRC article 3, which
requires States to ensure that the best interests of children be a
“primary consideration” in “all actions” concerning them.3 In
particular, the best interests of the child clearly lie in ensuring
that a newborn child acquires a nationality as soon as possible and is
not left stateless for an extended period.
National laws should adopt an inclusive definition of parentage
reflecting the fact that children’s experience of ‘family’ and
‘parents’ varies between cultural, political and social systems.
Examples include households with a single parent, same-sex parents,
adoptive families, extended families, and children born from ARTs.
Where a child is born through a surrogate abroad but will be living
with the intending parents in their own country, the best interests of
the child would typically lie in passing on the intending parents’
nationality to the child. Where single citizenship may not be secure
(in Australia and in the US, for example, citizenship can be revoked
and individuals sent back to their country of origin) then dual
citizenship may be preferable.4
A legislative proposal in India offered one possible solution to
establishing safeguards in that regard. It would require citizens of
other countries seeking a surrogacy arrangement in India to establish
first that the child would be granted citizenship in the country of
the intending parents and that they would be recognised as the legal
parents.5
The right to have and be cared for by one’s parents
Article 7 is clear that a child “shall have... as far as possible, the
right to know and be cared for by his or her parents”. In view of
these requirements, it is in the best interests of the child to
establish his or her parentage in law, as early as possible. Whenever
conflict or confusion arises, the resolution must be as swift and fair
as possible, and the best interests of the child must always be a
primary consideration.
By involving more than two adults with a potential claim to
parenthood, and often involving individuals from different
jurisdictions with differing cultural expectations, third-party
reproduction increases the risk of disputes over parentage. Any
difficulties in establishing legal parentage, if not settled quickly,
are highly likely to have an impact on the critical early months of a
child’s life. National legislation should therefore be clear and not
encourage, by omission, conflict between the people involved. States
should also be clear on the principles by which such conflicts should
be settled after they arise. Well-established processes, and a clear,
written understanding between intending parents and third parties, may
help to prevent conflicts from arising later.
States should set out, in law or policy, the principles according to
which such conflicts may be settled. This must include a systematic
impact assessment on the child’s rights and interests, which must
always be a primary consideration. For example, this consideration
would favour a resolution that results in the best developmental
environment for the child.
Recommendation: The existence of children’s rights does not depend on
the choices of their parents. Therefore, neither the method of
conception used by a child’s parents, nor the legality of the
procedure used, should impede the child’s enjoyment of his or her
rights, including identity rights.
*
Describe safeguards protecting the access to origins (CRC art. 7
and 8) that are currently being implemented in your State. Note
whether and how such general safeguards protecting the access to
origins apply in the context of surrogacy arrangements.
Article 7 of the CRC recognises a child’s right, “as far as
possible... to know his or her parents”. Accordingly, the Committee on
the Rights of the Child has been clear that children born of
third-party reproduction have a right to know their origins.6 It has
further stated that “due consideration of the child’s best interests
implies that children have [...] the opportunity to access information
about their biological family, in accordance with the legal and
professional regulations of the given country”.7
The Convention on the Rights of the Child (CRC) is clear that ‘[in]
all actions concerning children… the best interests of the child shall
be a primary consideration’ (Art. 3). According to the Committee, the
best interests of the child must be used ‘for interpreting and
implementing all of the rights of the child’ and requiring ‘an
assessment appropriate to the specific context’.8
With regard to the access to the origins in the context of a child
born from a surrogacy arrangement, the Committee has not determined
what kind of information should be disclosed or when/ how this should
be made available to the child. But it has expressed concern about
jurisdictions where the identities of “biological parents” are
withheld from children in other contexts. Citing CRC articles 3 (best
interest of the child) and 7 (the right to know one’s parents), the
Committee has recommended several times that States should “...take
all necessary measures to allow all children, irrespective of the
circumstances of their birth, (...) to obtain information on the
identity of their parents, to the extent possible.”9
Furthermore, article 8 of the Convention protects children’s right to
preserve their identity, including their nationality, name and family
relations as recognised in law, without unlawful interference. In
specifying a right to “family relations” the article implicitly
includes a right to know the identities of the wider family of a
child’s “biological parents”, including any half-siblings and other
genetic relatives.
In addition, article 24 of the Convention recognises the child’s right
to the highest attainable standard of health. In the context of
surrogacy, this concerns a child’s right to know whether the medical
history of biological or genetic parents indicates a risk of
genetically transferable disease. A child’s right to health implies a
right to know whether he or she was born of third-party reproduction
and, if so, what the risks of heritable disease may be, but not
necessarily the identity of any third parties.
Recommendation: A children’s rights position clearly recognises a
child’s right to access their origins and any half-siblings. No
conditions such as ‘legitimate interest’ should be applied, and the
information should be available as and when a child requests it,
without any minimum age requirement, in line with their evolving
capacities as per CRC Article 5.10 Non-identifying medical information
should always be made available to descendants in support of their
right to health.
*
Describe how the right to access origins is balanced with the
right to privacy of parents and gamete donors. Indicate
specifically how the best interests of the child are factored in.
Balancing the child’s right to access one’s origins with the right to
privacy of adults involved in surrogacy has until recently often
tended to favour the adults’ right to privacy, whether a gamete donor
or a surrogate mother. However, an international trend towards
recognising the right of children to know their origins has been
displacing the right of donors to remain anonymous.
The Committee has said that, when the best interests of a child are in
conflict with the rights of other people, relevant authorities must
weigh the rights of all those concerned while bearing in mind their
obligations to make the child’s best interests a primary
consideration.11 For instance, in the context of adoption, the
Committee called on France to remove the requirement of the biological
mother’s consent to reveal her identity and to increase its efforts to
address the conditions that lead parents to use confidential birth.12
Donor-conceived children
The first country to remove donor anonymity was Sweden in 1984.13 The
Swedish model was then followed by a number of jurisdictions including
Austria, Germany, Switzerland, the Australian states of Victoria and
Western Australia, the Netherlands, Norway, the United Kingdom (UK),
and New Zealand.14
When the UK abolished donor anonymity, past donors were given the
option to ‘re-register’ to enable children conceived with their
donated material to discover their parentage and make contact on
reaching the age of 18.15 More controversially, the Australian state
of Victoria has passed a new law lifting anonymity retrospectively,
irrespective of the donor’s consent or when they donated.16
The child’s right to know their origins is realised to varying degrees
between jurisdictions, and the issue remains contentious.17 In its
recommendation to the Committee of Ministers to the Council of Europe
on anonymous donation of sperm and oocytes, the Parliamentary Assembly
has recently recommended anonymity to be waived for all future gamete
donations in Council of Europe member States, and the prohibition of
the use of anonymously donated sperm and oocytes. It has further
explained that, as a consequence of the previous recommendation, the
donor’s identity would not be revealed at the time of the donation to
the family, but would be revealed to the donor-conceived child upon
his or her 16th or 18th birthday.18
Recommendation: As stated above under the previous question, in CRIN’s
view, a children’s rights-based position clearly recognises a child’s
right to know their “biological origins” and any half-siblings. No
conditions such as ‘legitimate interest’ should be applied, and the
information should be made available as and when a child requests it,
without any minimum age requirement, in line with their evolving
capacities as per CRC Article 5.19
To this end, States must ensure that complete records are properly
archived. Decisions concerning requests for information should be
taken on a case-by-case basis by an independent body, with
consideration for the full range of children’s rights. For example, a
civil servant may be authorised to make the initial decision, subject
to a right of appeal to an information-commissioner (or similar) and
eventually to the courts if necessary. A rejected request should also
be subject to periodic review.
Furthermore, some information should be made available to descendants
of people conceived with donor gametes to help them to re-establish
elements of their identity which have been lost. Non-identifying
medical information should always be made available to descendants in
support of their right to health. This is already happening in the
adoption context,20 but there are no known cases brought by children
conceived with donor gametes.
Surrogacy
For the same reasons given above, children born of surrogacy should
have the right to know the identity of their gestational mother, and
to make contact with her, if she is genetically related (i.e. if her
own eggs were used in the conception).
In cases where there is no genetic relationship between a child and a
surrogate (because the eggs used were provided by another woman), the
child’s right to health demands that at least some information about
her be made available. During pregnancy, the exchange of
maternal-foetal cells, epigenetic processes,21 and other factors can
have a long-term effect on the health of both the surrogate mother and
the child. Therefore, children should, as a minimum, have access to
non-identifying medical information about the surrogate and contextual
information about their environment during the period of the
pregnancy. Even irrespective of the child’s right to health,
identifying information should also be made available in accordance
with the child’s right to establish their family identity.
Countervailing rights of parents
Occasionally, a donor or surrogate risks being ostracised by their
community if their identity is made public. In cases where a child’s
right to know their parents could put them at serious risk, it may be
that some information could be made available and some withheld.
Recommendation: Authorities should presume in favour of children when
there are conflicts between their rights and those of adults, and
where a compromise is unavoidable, it must still uphold children’s
best interests.
*
Describe safeguards protecting the family environment (CRC art. 7,
8, 9, 10, 20) that are currently being implemented in your State.
Note whether and how such general safeguards protecting the family
environment apply in the context of surrogacy arrangements.
Indicate specifically how the best interests of the child are
factored in.
The CRC recognises that “the child, for the full and harmonious
development of his or her personality, should grow up in a family
environment, in an atmosphere of happiness, love and understanding”.
Article 7 is clear that a child “shall have... as far as possible, the
right to know and be cared for by his or her parents”. In view of
these requirements, it is in the best interests of the child to
establish his parentage in law, as early as possible.
Since a child has a legal right to a family environment and a loving
atmosphere, which is especially critical for health and well-being in
the early weeks and months of his or her life, legal confusion over
parentage and interpersonal conflict between contending parents should
ideally be prevented. Well-established processes, and a clear, written
understanding between intending parents and third parties, may help to
prevent conflicts from arising later.
Clearly, whenever conflict or confusion arises, resolution must be as
swift and fair as possible, and in accordance with the best interests
of the child. To this end, States should set out, in law or policy,
the principles according to which such conflicts may be settled.
This must include a systematic impact assessment on the child’s rights
and interests, which must always be a primary consideration. For
example, this consideration would favour a resolution that results in
the best developmental environment for the child.
*
Provide information on existing laws, regulations or practices for
the establishment, recognition and contestation of legal
parentage. Indicate specifically how the best interests of the
child are factored in.
N/A
*
Specify how the establishment of parentage occurs in the context
of surrogacy arrangements. Indicate specifically how the best
interests of the child are factored in.
N/A
1 The full paper is accessible on CRIN’s website at:
https://home.crin.org/issues/assisted-reproductive-technologies
2 An estimated 2,000 children in France were lacking French birth
certificates and nationality because they were born through surrogacy,
a practice that is not legal in the country. In January 2013, the
Ministry of Justice issued a circular to facilitate the delivery of
birth certificates confirming filiations recognised abroad in cases of
children born abroad from a surrogate mother. For details, see
http://www.textes.justice.gouv.fr/art_pix/JUSC1301528C.pdf (in
French).
3 UN Committee on the Rights of the Child, General comment No. 14
(2013) on the right of
the child to have his or her best interests taken as a primary
consideration (art. 3, para. 1), CRC/C/ GC/14, para. 30. Available at:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.as
px?symbolno=CRC%2fC%2fGC%2f14_&Lang=en.
4 Sang-Hun, C, ‘Deportation a “Death Sentence” to Adoptees After a
Lifetime in the U.S.’, New York Times, 2 July 2017. Available at:
https://www.nytimes.com/2017/07/02/world/asia/south-
korea-adoptions-phillip-clay-adam-crapser.html?mcubz=0.
5 India’s draft Assisted Reproductive Technologies (Regulation) Bill
2010 at:
https://www.icmr.nic.in/sites/default/files/guidelines/ART%20REGULATION%20Draft%20Bill1.pdf
6 For example, the Committee recommended that Ireland ensure that
children born through assisted reproduction technologies have access
to information about their origins. See CRC/C/IRL/ Co/3-4, 1/03/2016,
paras. 33-34. Available at
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fIRL%2fCO%2f3-4&Lang=en.
In the context of adoption, the Committee also recommended that France
put in place the necessary measures for all information about
parent(s) to be registered, in order to allow the child to know, to
the extent possible and at the appropriate time, his or her parents;
see CRC/FRA/CO/5, 23/02/2016, para. 33. Available at
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fFRA%2fCO%2f5&Lang=en.
7 Committee on the Rights of the Child, General comment No. 14 (2013)
on the right of the child to have his or her interests taken as a
primary consideration, CRC/C/GC/14, para. 56. Available at
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f14&Lang=en.
8 UN Committee on the Rights of the Child, General comment No. 14
(2013) on the right of the child to have his or her best interests
taken as a primary consideration (art. 3, para. 1), at para. 1.
9 Committee on the Rights of the Child, Concluding Observations to the
UK, CRC/C/15/Add.188, 2002, para. 32. Available at
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2f15%2fAdd.188&Lang=en.
See also Concluding Observations to France, CRC/C/FRA/CO/5, 2016,
para. 33. Available at
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fFRA%2fCO%2f5&Lang=en.
10 See CRIN’s discussion paper, ‘Age is Arbitrary: setting minimum
ages’, p. 12. Available at:
www.crin.org/en/node/42535
11 UN Committee on the Rights of the Child, General comment No. 14
(2013) on the right of the child to have his or her best interests
taken as a primary consideration (art. 3, para. 1), at para. 39.
Available at
http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf.
12 Committee on the Rights of the Child, Concluding Observations to
France, CRC/FRA/CO/5, 2016, para. 33. Available at:
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fFRA%2fCO%2f5&Lang=en
13 Law No. 1140 allowed the child, when sufficiently mature, to nd out
the identity of their sperm donor (Sweden did not allow oocyte
donation). See Daniels, K and Lalos, O, ‘The Swedish Insemination Act
and the availability of donors’, 1995, Human Reproduction, 7, 1871–4.
14 Cohen, G; Coan, T; Ottey, M and Boyd, C, ‘Sperm donor anonymity and
compensation: an ex- periment with American sperm donors’, Journal of
Law and the Biosciences, 3(3), December 2016, pp. 468-488. Available
at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5570712.
15 UK, Human Fertilisation & Embryology Authority, Re-register as an
identifiable donor. Available at http://www.hfea.gov.uk/1973.html.
16 The amendment to the Assisted Reproductive Treatment Act 2015
entered into force in March 2017. It means that all donor-conceived
people are now able to apply for identifying information, regardless
of when the donations were made or whether the donor consents.
See Bio News, ‘New law in Australian State ends donor anonymity’, 29
February 2016. Available at http://www.bionews.org.uk/page_621467.asp
17 Clark, B, ‘A balancing act? The rights of donors-conceived children
to know their biological origins’, Georgia Journal of International
and Comparative Law, 2002, 40(3), pp. 619-661. Available at
http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1001&context=gjicl.
18 Anonymous donation of sperm and oocytes: balancing the rights of
parents, donors and children, PACE Recommendation 2156 (2019), 12
April 2019; available at:
http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=27680&lang=EN
19 See CRIN’s discussion paper, ‘Age is Arbitrary: setting minimum
ages’, p. 12. Available at:
www.crin.org/en/node/42535
20 See Children in Court CRINmail, September 2014, available at:
https://www.crin.org/en/home/
what-we-do/crinmail/children-court-crinmail-39-0#H; and
Constitutionality of Article 139 of the Family Code of Russian
Federation and Article 47 of the Federal Law ‘On the Acts of Civil
Status’ on account of complaint lodged by the citizens G. F. Grubich
and T. G. Guschina, CRIN summary avail- able at:
https://www.crin.org/en/library/legal-database/constitutionality-article-139-family-code-
russian-federation-and-article-47
21 Loike, J.D. & Fischbach, R., ‘Gestational surrogacy: medical and
bioethical implications of bidirectional maternal-fetal cell exchange
and epigenetics’ in Science-Based Bioethics: A Scientific Approach to
Bioethical Decision-Making, 2014, Center for Bioethics, Columbia
University; BBC Radio 4, ‘All in the womb’, 25 April 2016, available
at: http://www.bbc.co.uk/programmes/b077gd58.
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