Joint Submission to the Special Rapporteur on violence against women and girls’ call for inputs on the report, “surrogacy and violence against women” – Women Deliver

Joint Submission to the Special Rapporteur on violence against women and girls’ call for inputs on the report, “surrogacy and violence against women”

This submission is made on behalf of nine organizations and individuals:

  1. Amnesty International
  2. Alice M. Miller, JD and Professor in the Practice, Yale School of Public Health and Dr. Mindy Jane Roseman for the Global Health Justice Partnership of the Yale Law and Public Health Schools
  3. The Center for Reproductive Rights
  4. The Global Alliance Against Traffic in Women (GAATW)
  5. Global Justice Center
  6. Just Futures Collaborative
  7. Ratna Appnender
  8. Sarojini Nadimpally
  9. Women Deliver

Introduction

The remit of the UN Special Rapporteur on Violence against Women and Girls’ mandate is to consider the human rights implications of violence against all individuals involved in surrogacy arrangements:[1] gamete donors and surrogates, intending parent(s), and children, once born, from this process.

Access to and participation in assisted reproductive technology (ART), which is facilitated by surrogacy arrangements, is an integral component of realizing a person’s human rights, to which all individuals are entitled to without discrimination. Governments must ensure that there is a human rights-based approach to and regulation of surrogacy. Should violence, fraud, coercion, deceit or exploitation arise in the practice of surrogacy, governments must remedy such violations through legal, administrative, economic and budgetary means, as well as provide meaningful protection, assistance and redress for those whose rights have been violated.

The practice of surrogacy is not inherently coercive or exploitative and does not amount to a human rights violation. Attempts to criminalize surrogacy fall short of the duty of governments to help realize the enjoyment of human rights for all.

Rights to Bodily Autonomy

Under International Human Rights Law, States have obligations to respect, protect, and fulfil the sexual and reproductive health and rights of all people,[2] and ensure that, in their exercise, all individuals are free from discrimination, violence, fraud, coercion, and deceit.[3]  These obligations apply to individuals who seek and provide surrogacy services. All individuals involved in surrogacy are entitled to the right to available, accessible, acceptable and quality (“AAAQ“) reproductive health information, commodities and services, the right to decide on the number and spacing of children, and the right to found a family, as well as the right to non-discrimination and equal protection under the law, the right to enjoy the benefits of scientific progress, and the right to freedom of expression, association and information, among other human rights.[4]

In the context of surrogacy, bodily and reproductive autonomy protects women’s[5] ability to choose whether to become pregnant, provide an oocyte, terminate a pregnancy or avoid a pregnancy, and together they entitle women to choose to engage or not in surrogacy.[6] Discrimination limiting women’s bodily and reproductive autonomy is “compounded for marginalized women, poor women, women of color, and women living in the Global South”.[7] However, legitimate concerns over the impact of socio-economic inequalities on women’s ability to make informed choices must not be misused as an excuse to curtail autonomy and limit the possibility of enjoying rights through overregulation.[8]

The right to bodily autonomy, recognized in the Beijing Declaration of 1995 as including sexual and reproductive rights and freedoms and the right to live free from violence, is crucial to ensuring that women and girls can exercise the right to live free from violence, discrimination, and poverty.[9] The absence of effective protection against violence and denials of sexual and reproductive autonomy not only deprives women living in poverty of their right to personal security, but also impede their right to equal participation in public life, education and employment, and to the creation of businesses and other income-earning activities.[10]

Best Interest of the Child

Laws in countries which render surrogacy arrangements null and void or which refuse to recognize birth certificates from abroad can result in a breach of the rights of the child. The UN Committee on the Rights of the Child (CRC), for example, has expressed “deep concern” at the deprivation of nationality that some children born through surrogacy continue to face and has recommended the removal of legal barriers and the strengthening of legal pathways for all children to acquire a nationality.[11] It has encouraged ongoing legislative initiatives seeking to regulate surrogacy to ensure that medically assisted reproduction involving surrogacy has children’s best interests as a primary consideration and that children born through surrogacy have access to information about their origins, in line with the right to identity.[12]

The CRC Committee has also highlighted that fully realizing the best interests of such children and persons who act as surrogates may require providing surrogates, gamete providers, and intended parents with appropriate counselling and support.[13] The CRC has further recommended that surrogacy regulations seeking to protect the right to identity provide clear procedures for managing and storing data regarding children’s origins.[14] The Committee on the Elimination of Discrimination Against Women (CEDAW) has also expressed similar concerns where there is an absence of legal regulation of surrogacy and has recommended the adoption of legal provisions allowing children born of surrogacy abroad to acquire citizenship by descent.[15]

The Right to Create a Family

The right to create a family is enshrined in international human rights law,[16] and various international agreements recognize that diverse forms of the family exist.[17]  The World Health Organization (WHO) recognizes surrogacy as an ART procedure, used when an individual or couple cannot gestate an embryo to term themselves.[18] The International Conference on Population and Development, Programme of Action recognized infertility and its treatment as a foremost reproductive health issue, to which governments should allocate resources to address, including through infertility education and prevention, and access to treatment[19] and to enjoy scientific progress.[20]

For many same-sex couples, persons with disabilities, those who have been forcibly sterilized, as well as trans and intersex persons, surrogacy may be one of the few forms of ART that allows them to build a family. However, regulations by some States, such as India,[21] Georgia,[22] Russia,[23] Ukraine,[24] and most recently Greece,[25] explicitly restrict access to surrogacy based on the sexual orientation of the intended parent[s], or disproportionately impact such persons.[26]

In States that do not legally recognize LGBTQIA+ relationships and where access to ART is restricted based on marital status, surrogacy is also de facto banned for those persons, which often includes same-sex couples, cohabiting heterosexual couples, non-married couples and single persons. Some intersex people are in heterosexual relationships, including marriages, and either cannot biologically reproduce due to their innate sex characteristics or have been sterilized due to non-consensual and medically unnecessary surgeries attempting to “normalize” their bodies to match a binary sex norm.[27] Some trans people may also be in a situation where they cannot now biologically reproduce if they have been forcibly sterilized to gain a gender marker in their legal documents that matches who they are.[28] In this way, restrictions that limit who can engage a surrogate serve to discriminate against individuals and couples who cannot have a biological child, in violation of their right to found a family and right to equality.

Economic Exploitation and the Right to Work

The CEDAW Committee first acknowledged the rights of surrogates in 2019 in response to Cambodia’s law, arguing that surrogates should have protections against exploitation, discrimination, and violence.[29]

Women undertake surrogacy for various reasons within a globalized capitalist economy underpinned by inequalities, similar to a range of other forms of gendered or reproductive labor, including domestic work, sex work or unpaid care and domestic work, which are performed disproportionately by women and people of marginalized identities. This question of exploitation is a larger question of gender justice and equality. A selective view of surrogacy as “inherently exploitative” is a disproportionate and misplaced criticism.

Women’s free choice of labor is limited by a variety of factors driven by patriarchal societal norms, gender inequality and poor labor protections, including the lack of formal employment relations; lower labor market productivity; a rising quantum of unpaid work; low and stagnant wages; precarious and hazardous work conditions; insecure or absent work contracts; lack of social security; migration status, and their subordinate position in the labor market.

While good global data is unavailable, a disproportionate number of surrogates come from marginalized social groups and may be driven by economic necessity and lack of access to education and professional training. The prohibition of surrogacy fails to address these underlying factors, and instead deprives women of a source of livelihood. Where surrogates work without any wages or compensation, this can be argued to be equivalent to forced labor.[30] Furthermore, concerns over freedom of choice fail to recognize that constrained choice is not unique to surrogacy and is a common feature across several kinds of labor.

By understanding surrogacy as work through the lens of stratified reproduction, existing rights frameworks such as the International Labour Organisation (ILO) in its Domestic Workers Convention, 2011 (189), and strategic state-level implementations of this and other existing conventions may be useful in providing a template that surrogates can use to claim rights as workers and as a tool for organizing collective action against labor exploitation and other human rights violations that emerge within the practice of surrogacy. Ultimately, however, the fulfilment of one’s human rights should not be dependent upon participation in paid work. Recognition of vulnerable circumstances ought to inform the nature of regulation and protections required by surrogates, and not be deployed to prohibit labor.

The absence of widespread evidence linking surrogacy to human trafficking appears to reflect the largely consensual and intended nature of surrogacy arrangements in regulated settings​. Trafficking in human beings requires all elements of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000)  definition of trafficking to be present – namely an act (1) such as recruiting, transporting, transferring, harboring or receiving a person; (2) by improper means such as coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments/benefits to someone controlling the victim; and (3) a purpose of exploitation (which can include sexual exploitation, forced labor or services, slavery or similar practices, servitude, or organ removal). In terms of surrogacy, these elements could occur if a woman is forced or deceived into being a surrogate. Where the surrogate’s consent is genuine and informed, and the intent of all parties is to care for the child, the arrangement does not meet the threshold of human trafficking.

When surrogacy arrangements have been treated as trafficking in persons (whether as trafficking of the surrogate, trafficking of fetuses and/or trafficking of the child born from surrogacy), this approach has led to grave human rights violations, including the prosecution of women for “trafficking” the fetuses, forcing women to raise the children born through this process against their will. Concerns over human trafficking must not be misused as an excuse to violate or limit the enjoyment of human rights, and a clear distinction must be made between surrogacy and exploitative practices.

Criminalization

Whilst legitimate and nuanced concerns around the potential for economic exploitation relating to surrogacy, when unregulated, exist, criminalizing consensual surrogacy is ineffective at preventing or reducing demand for ART, including surrogacy. In the UK, where compensated surrogacy is criminalized, eight times as many children were born via surrogacy in 2016 compared with 2007.[31] In Italy, where all surrogacy has been prohibited since 2004, around 250 couples a year travel abroad for surrogacy.[32]  In India, the ART and Surrogacy legislation allows ‘altruistic‘ surrogacy but prohibits commercial surrogacy.[33] The growing demand for surrogacy is reflective of increasing infertility challenges that are currently estimated to affect 1 in 6 people globally.[34] Given the strength of social norms, gender stereotypes and stigmatization around motherhood, demand for surrogacy services is likely to outweigh potential legal repercussions of seeking surrogacy for those intended parents who will otherwise expect to be socially punished for infertility.

Instead of reducing demand, criminalization drives surrogacy to less restrictive jurisdictions where proper legal, medical, and psychosocial support safeguards may not be in place. This increases the risk of harm and has led to legitimate concerns around “exporting exploitation.” States’ failure to offer well-regulated and ethical surrogacy practices in domestic settings leads intended parents to other countries, where more affordable options often have fewer protections and safeguards. In the UK, 51% of surrogate births took place abroad between 2016 and 2023.[35] The de facto ban and criminalization of compensated surrogacy in India has led to the establishment of surrogacy practices in Nepal, Thailand and Cambodia, where further criminalization displaced unregulated surrogacy to Vietnam and Laos.

Criminalization also forces consensual surrogacy underground and onto black market service providers, making it much harder to identify those at risk of actual exploitation and human trafficking and offer services and support to rights-holders without fear of legal repercussions. To illustrate, compensated surrogacy emerged in Cambodia in 2015 and was criminalized in October 2016. This resulted in the arrest and prosecution of 32 surrogates in 2018 on human trafficking charges, many of whom were forced to give birth in military hospitals whilst “chained to the bed”.[36] Whilst they were sentenced to 15 years imprisonment, many were subsequently released on bail under conditions requiring them to raise the children until 18.[37] It remains unclear whether these children are genetically related to the surrogates. The practice continues to thrive underground, where estimates suggest that Chinese couples will pay up to 100,000 USD for a Cambodian surrogate.[38]

Cambodia’s approach inflicts further rights violations on surrogates by depriving them of liberty and increasing stigmatization. It also fails to recognize or address underlying causes that drive women to act as surrogates, including both economic factors and altruistic motivations, or identify real cases of human trafficking. The CEDAW Committee has since called on Cambodia to repeal the criminalization of surrogacy, which “creates an additional financial and emotional burden on women who are in precarious situations, which led them to act as surrogates in the first place.”[39]

In less stringent contexts, jurisprudence demonstrates that criminal bans on surrogacy are also legally unenforceable post-facto in a way that is compatible with the best interests of the child.[40] This overwhelmingly requires that parental orders for surrogate children are granted to returning parents, thus authorizing foreign compensated surrogacy agreements in practice.[41] Despite total prohibition in Italy, no prosecutions for surrogacy had taken place by 2013,[42] leading the Italian government to introduce universal jurisdiction over the “crime” of surrogacy in December 2024. This has been broadly criticized as violating the fundamental principle of double criminality and for attempting to claim jus cogens status over an issue which lacks any international consensus and is legal in several jurisdictions.[43]

Studies repeatedly demonstrate that surrogacy has no harmful impact on the health or well-being of surrogates or children born of surrogacy, and conversely demonstrates positive outcomes for surrogacy arrangements,[44] regardless of whether surrogacy is “compensated” or “altruistic”. Conversely, the impacts of criminalization represent an unjustifiable and disproportionate interference with human rights. Criminal bans on healthcare services applicable only to women as persons capable of giving birth are intrinsically discriminatory,[45] whilst some efforts to restrict surrogacy are “motivated by discrimination”[46] in denying access to positive and rights-affirming pathways to parenthood for LGBTQIA+ or infertile persons. In India, for instance, “restrictions were primarily driven by state efforts to re-instill traditional notions of family,” and the government explicitly banned non-heterosexual persons from pursuing surrogacy.[47] This perpetuates stereotypical, stigmatizing and harmful norms around “traditional family values” and motherhood.[48]

Recommendations

States must decriminalize surrogacy and put in place robust regulatory frameworks to ensure the respect, protection and fulfilment of the human rights of all parties involved in surrogacy arrangements, including surrogates’ sexual and reproductive health and rights, as per international human rights law and standards. In accordance with CEDAW Committee recommendations,[49] regulations should address the underlying structural factors leading to power differentials and unequal bargaining power, and provide safeguards to prevent coercion, discrimination, and exploitation of surrogates. Rights-based regulatory frameworks for surrogacy should align with the following key principles for best practice, guaranteeing:[50]

  • The safety and legal rights of surrogates, including protection from exploitation, coercion, violence or human trafficking;

    • All surrogates must have a voluntary, comprehensive medical evaluation to confirm that they can safely carry on a pregnancy.Full respect for surrogates’ right to make all medical decisions affecting their health and the pregnancy, and full access to accurate information to allow the surrogate to make an informed decision.The right of the surrogate to terminate the pregnancy if she wishes to, informing the intended parties.Access to mental health counselling free of cost for surrogates.A clear written agreement with distinguished rights for the surrogate and intended parties.Provision of a life insurance policy and medical insurance covering the entire process.Access to legal aid and independent legal advice for all surrogates.All documentation and interaction are conducted in a language the surrogate understands.
    • Legal safeguards ensuring compensation, if provided, are judicially guaranteed.
  • The safety and legal rights of children born of surrogacy, including;

    • Their rights to citizenship and nationality, regardless of their place of birth,To access information about their origin, i.e., access the identity of their surrogate and any gamete donors
    • Their best interest is protected at all times.
  • Regulations should guarantee the safety and legal rights of intending parents including through legal safeguards against discrimination in accessing surrogacy based on any identity characteristics or other status, provision and enforcement of clear and written agreements with distinguished rights and responsibilities for the surrogate and intended parties; removing legal and administrative barriers to registration of children born of surrogacy and acquisition of parentage. 
  • Provide clear guidance on the operation of surrogacy providers, including licensing of clinicians, agencies, lawyers and other professionals involved; required registration and licensing for surrogacy matching programs, compliance with record-keeping obligations; and application of strict and safe medical protocols.
  • That surrogacy should not be conflated with trafficking, and specific instances of surrogacy may be addressed as trafficking only in adherence with the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000).
  • A safe working environment, equal pay, access to healthcare services and insurance where relevant, and progressive regulation that promotes the interests of the surrogate.
  • The equal right to form a family through surrogacy without discrimination, irrespective of gender or gender identity, sex, marital or relationship status, sexual orientation or disability status.

[1] Surrogacy may be undertaken in different forms, including traditional and gestational. Traditional surrogacy refers to surrogacy arrangements wherein the woman acting as surrogate provides her own ova to become pregnant, whereas in gestational surrogacy arrangements, the surrogate does not provide her own ova. Often, both types of surrogacy involve the use of the gametes of at least one intended parent. Either form of surrogacy arrangement may sometimes include no financial transfer, at other times may involve financial reimbursement for the woman acting as surrogate’s reasonable expenses, and at other times may compensate the surrogate beyond reimbursement for her incurred expenses. For purposes of this submission, the terms ‘surrogacy’ and ‘gestational surrogacy’ interchangeably and in a manner that does not include traditional surrogacy, unless otherwise explicitly stated.

[2] These rights include the right to privacy, health, and reproductive freedom. Under UDHR art. 12, ICCPR art. 17, General Comment No. 14, The Right to the Highest Attainable Standard of Health, para 8, U.N. Doc. E/C.12/2000/4 (2000); Comm. on Econ., Soc. & Cultural Rts., General Comment No. 22, On the Right to Sexual and Reproductive Health (Art. 12), U.N. Doc. E/C.12/GC/22 (2016);  The right to access the highest attainable standard of health includes the right to reproductive health and informed consent and it guarantees the freedom to decide if and when to reproduce and the right to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice as well as the right of access to appropriate health-care services that will, for example, enable women to go safely through pregnancy and childbirth  General Comment No. 14 para 14; Likewise, the CEDAW Committee in the case Mellet vs Ireland  (CCPR/C/116/D/2324/2013) para 7.8 and Siobhan Whelan vs Ireland para 7.9, (CCPR/C/119/D/2425/2014) reaffirms women’s right to decide freely and responsibly on the number and spacing of their children, and to have access to the information, education, and means to do so; The Human Rights Committee  has repeatedly recognized that the state obligation to ensure reproductive autonomy arises from the right to privacy see for instance K.L. v. Peru, (CCPR/C/85/D/1153/2003) or L.M.R. v. Argentina (CCPR/C/101/D/1608/2007 (2011).

[3] E/C.12/GC/22 (2016), para. 1; Committee on Economic Social and Cultural Rights, General Comment No. 14 on the right to the highest attainable standard of health, E/C.12/2000/4 (2000), paras. 2, 8, 11, 16, 21, 23, 34 and 36; CEDAW, art. 12(1); Committee on the Elimination of Discrimination against Women, General Recommendation No. 24 on women and health, A/54/38/Rev.1, chap. I (1999), paras. 11, 14, 18, 23, 26, 29, 31 (b); CRC, arts. 17, 23-25 and 27; Committee on the Rights of the Child, General Comment No. 15 on the right of the child to the enjoyment of the highest attainable standard of health, CRC/C/GC/15 (2013); CRPD, arts. 23 and 25; CERD, art. 25; ACHPR, art. 16(1); United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (2007), arts. 21, 23, 24; A/CONF.171/13/Rev.1 (1995), Principle 8; A/CONF.177/20 (1995), paras. 89 – 105.

[4] Right to equality and non-discrimination (e.g.Universal Declaration of Human Rights, art. 2; ICESCR art. 2; CEDAW art. 2; CRPD arts. 5 and 6); right to health (e.g., UDHR art. 25, ICESCR art. 12, CEDAW art. 12); right to privacy (e.g., UDHR art. 12; ICCPR art. 17); right to bodily autonomy (e.g., ICCPR arts. 7 and 17, CEDAW art. 12 and GR 24); right to reproductive autonomy (e.g., ICESCR GC 22, CEDAW art. 12 and GR 24); right to decide number and spacing of children (CEDAW art. 16); right to information (e.g. UDHR art. 19; ICCPR art. 19); right to benefit from scientific progress (e.g., UDHR art. 27, ICESCR art. 15(b)); rights of persons with disabilities (e.g., CRPD arts. 5, 6, 7, 12, 17, and 23) in Claudia Flores, Accounting for the Selfish State: Human Rights, Reproductive Equality, and Global Regulation of Gestational Surrogacy, 23 CHI. J. INT’l L. 391 (Winter 2023), pg. 424.

[5] The authors of this submission recognise that whilst the majority of persons who are surrogates are biological women and identify as such, this submission acknowledges that persons identify in many different ways and is inclusive of those persons who may carry children but identify their gender in other ways.

[6] Claudia Flores, Accounting for the Selfish State: Human Rights, Reproductive Equality, and Global Regulation of Gestational Surrogacy, 23 CHI. J. INT’l L. 391 (Winter 2023) citing: CESCR Committee General Comment No. 14, paras. 8, 14; CESCR General Comment No. 22; CRPD Committee  General Comment No. 3 (Art. 6), paras. 40, 44. Human Rights Committee, Amanda Jane Mellet v. Ireland, para. 7.8; Human Rights Committee Siobhin Whelan v. Ireland,para. 7.9. See also ECHR Pretty v. The United Kingdom, App. No. 2346/02 Eur. Para. 61 (2002); IACHR, Artavia Murillo et al. v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgement, Inter-Am. Ct. H.R (ser. C) No. 257 para. 222-53

[7] See Kimberle Crenshaw, Mapping the Margins: Intersectionaly, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REv. 1241 (1990); see also Mercedes Mateos Diaz et al., Worlds Apart: Reproductive Health and Rghts in an Age of Inequality, UNFPA STATE OF WORLD POPULATION (2017), https://perma.cc/367D-JLJQ. in Claudia Flores 2023 pg 438

[8] States have used these  restrictions without comprehensive consideration of whether such concerns can and should be addressed in ways that also protect the rights at issue, in Claudia Flores, Accounting for the Selfish State: Human Rights, Reproductive Equality, and Global Regulation of Gestational Surrogacy, 23 CHI. J. INT’l L. 391 (Winter 2023) pg 431

[9]  Human Rights Council, Gendered inequalities of poverty: feminist and human rights based approaches, UN Doc. A/HRC/53/39, para. 41, pg. 12

[10]  Human Rights Council, Gendered inequalities of poverty: feminist and human rights based approaches, UN Doc. A/HRC/53/39, para. 41, pg. 12

[11] CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Ireland, U.N. Doc. CRC/C/IRL/CO/5-6 (February 28, 2023), para. 19(c)(ii).

[12] CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Ukraine, U.N. Doc. CRC/C/UKR/CO/5-6 (October 27, 2022), para. 21; see also CRC Committee, Concluding observations on the combined fifth to sixth periodic reports of Ireland, U.N. Doc. CRC/C/IRL/CO/5-6 (February 28, 2023), para. 20; CRC Committee, Concluding observations on the sixth periodic report of New Zealand, U.N. Doc. CRC/C/NZL/CO/6 (February 28, 2023), para. 20; CRC Committee, Concluding observations on the combined fourth to sixth periodic reports of Greece, U.N. Doc. CRC/C/GRC/CO/4-6 (June 28, 2022), para. 22; CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Switzerland, U.N. Doc. CRC/C/CHE/CO/5-6 (October 22, 2021), para. 22.

[13] See. Id.

[14] CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Luxembourg, U.N. Doc. CRC/C/LUX/CO/5-6 (June 21, 2021), para. 16.

[15] Even where domestic courts have recognized a child’s citizenship when born of surrogacy abroad or when the State has established an electronic birth registration system. See CEDAW Committee, Concluding observations on the sixth periodic report of Namibia, U.N. Doc. CEDAW/C/NAM/CO/6 (July 12, 2022), paras. 35(a), 36(a).

[16] Universal Declaration of Human Rights (1948) Article 16; International Covenant on Civil and Political Rights, (1966), Art. 23; International Covenant on Economic Social and Cultural Rights (1966) Art. 10.

[17] See for example the International Conference on Population and Development and its Programme of Action Outcome 5.1; the Beijing Declaration and Platform of Action, para 29; and the Copenhagen Declaration and Programme for Action (26(H)).

[18]  See definition of ART in the WHO-ICMART revised glossary, available at https://www.who.int/teams/sexual-and-reproductive-health-and-research-(srh)/areas-of-work/fertility-care/ART-revised-glossary

[19] See infra note 2.

[20] CESCR Committee General Comment No. 25 para 9.

[21] On top of other restrictions, surrogacy is limited to couples who are “legally married Indian man and woman above the age of 21 years and 18 years respectively.” See: India, Surrogacy (Regulation) Act, 2021, https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf, Chapter I(2)(h).

[22] It has been banned for same-sex couples since at least 2014. See: Simon Bowers, “Georgia To Ban Overseas Couples From Hiring Women as Surrogates,” June 27, 2023, https://pulitzercenter.org/stories/georgia-ban-overseas-couples-hiring-women-surrogates?utm_source=chatgpt.com.

[23] Russian officials warned in 2020 that they would arrest people “of non-traditional sexual orientation” who had had children through surrogacy. See: Theo Merz, “Single fathers with children via surrogates flee Russia amid crackdown,” The Guardian, October 15, 2020, https://www.theguardian.com/world/2020/oct/15/single-fathers-in-russia-with-surrogate-babies-become-official-target.

[24] Ukraine, Family Code of Ukraine, 2022, https://natlex.ilo.org/dyn/natlex2/natlex2/files/download/61639/UKR-61639%20(EN).pdf, art. 123.2.

[25] “Greece will ban having children via surrogacy for single men and male same-sex couples,” Associated Press, April 1, 2025, https://apnews.com/article/greece-surrogacy-samesex-single-men-df992d4a44094e1f36cb40569fcb7b7d.

[26] Emma Bubola, “Italy Criminalizes Surrogacy From Abroad, a Blow to Gay and Infertile Couples,” New York Times, October 16, 2024, https://www.nytimes.com/2024/10/16/world/europe/italy-surrogacy-law.html.

[27] Rowlands S, Amy JJ. Preserving the reproductive potential of transgender and intersex people. Eur J Contracept Reprod Health Care. 2018 Feb;23(1):58-63. doi: 10.1080/13625187.2017.1422240. Epub 2018 Jan 11. PMID: 29323576

[28] https://www.ohchr.org/en/stories/2014/06/right-choose-and-refuse-sterilization

[29] CEDAW Committee, Concluding observations on the sixth periodic reports of Cambodia, U.N. Doc. CEDAW/C/KHM/CO/6 (November 12, 2019), paras. 46-47.

[30] Banerjee, S., & Kotiswaran, P. (2020). Divine labours, devalued work: the continuing saga of India’s surrogacy regulation. Indian Law Review, 5(1), 85–105. https://doi.org/10.1080/24730580.2020.1843317

[31] O Igiehon, ‘Should the UK Law on Surrogacy be Reformed?’ (New Law Journal, 18 January

2021)

[32] Paterlini M. ‘Italy bans citizens from seeking surrogacy abroad’ BMJ 2024; 387 :q2316 doi:10.1136/bmj.q2316

[33] Assisted Reproductive Technology (Regulations) Act 2021 https://www.indiacode.nic.in/bitstream/123456789/17031/1/A2021-42%20.pdf; The Surrogacy (Regulation) Act 2021 https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf

[34] See Infertility prevalence estimates, 1990–2021. Geneva: World Health Organization; 2023. License: CC BY-NC-SA 3.0 IGO. https://www.who.int/publications/i/item/978920068315

[35] Cafcass. Response to FOI inquiry from Kirsty Horsey, ref Gov/CAF23-31530, 28.11.23

[36] New York Times, ‘They were surrogates. Now they must raise the children.’ 11 November 2022. https://www.nytimes.com/2022/11/26/world/asia/surrogacy-cambodia.html

[37] Ibid

[38] BBC, ‘Cambodia jails 13 pregnant Filipino surrogates’, 3 December 2024. https://www.bbc.co.uk/news/articles/c8rjdj336xpo

[39] CEDAW Committee, Concluding observations on the sixth periodic report of Cambodia, UN Doc. CEDAW/C/KHM/CO/6, para 46

[40] CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Ireland, U.N. Doc. CRC/C/IRL/CO/5-6 (February 28, 2023), para. 19(c)(ii).

CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Ukraine, U.N. Doc. CRC/C/UKR/CO/5-6 (October 27, 2022), para. 21; see also CRC Committee, Concluding observations on the combined fifth to sixth periodic reports of Ireland, U.N. Doc. CRC/C/IRL/CO/5-6 (February 28, 2023), para. 20; CRC Committee, Concluding observations on the sixth periodic report of New Zealand, U.N. Doc. CRC/C/NZL/CO/6 (February 28, 2023), para. 20; CRC Committee, Concluding observations on the combined fourth to sixth periodic reports of Greece, U.N. Doc. CRC/C/GRC/CO/4-6 (June 28, 2022), para. 22; CRC Committee, Concluding observations on the combined fifth and sixth periodic reports of Switzerland, U.N. Doc. CRC/C/CHE/CO/5-6 (October 22, 2021), para. 22.

CEDAW Committee, Concluding observations on the sixth periodic report of Namibia, U.N. Doc. CEDAW/C/NAM/CO/6 (July 12, 2022), paras. 35(a), 36(a).

[41] Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2012] EWHC 3147 (Fam), [2012] 1FLR 1347; Re A and B (surrogacy: domicile) [2013] EWHC 426 (Fam); [2014] 1 FLR 169.

Mennesson and Labasee v France (Appl. Nos. 65192/11 and 65941/11) Judgment of 26

June 2014; Paradiso and Campanelli v Italy (Appl. No. 25358/12) Judgment of 27 January 2014; German

Federal Court: XII ZB 463/1 (10 December 2014).

Re L (a minor) [2010] EWHC 3146 (Fam)

[42] Directorate General for Internal Policies, A comparative study on the regime of surrogacy in EU

Member States (European Parliament 2013) https:// www .europarl .europa .eu/ RegData/ etudes/ STUD/

2013/ 474403/ IPOL -JURI _ET(2013)474403 _EN .pdf accessed 23 June 2022.

[43] Paterlini M. Italy bans citizens from seeking surrogacy abroad BMJ 2024; 387 :q2316 doi:10.1136/bmj.q2316

[44] O Van den Akker, ‘Psychological Trait and State Characteristics. Social Support and Attitudes to

the Surrogate Pregnancy and Baby’ (2007) 22(8) Human Reproduction 8; JC Ciccarelli, ‘The Surrogate

Mother: A Post-birth Follow-up Study’ (PhD Thesis, California School of Professional Psychology

Jadva V, Imrie S, Golombok S. Surrogate mothers 10 years on: a longitudinal study of psychological

well-being and relationships with the parents and child. Hum Reprod 2015;30:-9.

doi: 10.1093/humrep/deu339 pmid: 25527614: A longitudinal study of 34 surrogates in the UK over a 10-year period demonstrated no change in psychosocial wellbeing. Conversely, every surrogate interviewed remained positive about the experience.

Jacobson H. Laboroflove:gestationalsurrogacyandtheworkofmakingbabies. Rutgers University

Press, 2016: A US study of gestational surrogates found the experience extremely rewarding and “pleasurable”

Kneebone E, Beilby K, Hammarberg K. Experiences of surrogates and intended parents of

surrogacy arrangements: a systematic review. ReprodBiomedOnline 2022;45:-30.

doi: 10.1016/j.rbmo.2022.06.006 pmid: 35909052: A systematic review of 47 studies across 12 countries looking predominantly at gestational surrogacies in “commercial” arrangements found the experiences of both surrogates and intended parents to be largely satisfactory and often resulted in enduring positive relationships between surrogates and parents.

Jadva V, Gamble N, Prosser H, Imrie S. Parents’ relationship with their surrogates in cross-border

and domestic surrogacy arrangements. FertilSteril2018;111:-70.

doi: 10.1016/j.fertnstert.2018.11.029 pmid: 3082752: A 2018 study found close positive relationships between surrogates and parents enduring after the birth in most surrogacy arrangements (including 95% of US and UK surrogacy cases).11

Golombok S, Jones C, Hall P, Foley S, Imrie S, Jadva V. A longitudinal study of families formed

through third-party assisted reproduction: mother-child relationships and child adjustment from

infancy to adulthood. Dev Psychol2023;59:-73. doi: 10.1037/dev0001526 pmid: 37053391: A longitudinal study in the UK of 42 surrogacy families over 20 years found that outcomes relating to psychosocial adjustment, parental attachment and wellbeing were as good, if not better, than those of children born through other arrangements.

[45] CEDAW General Recommendation No. 24 (1999) para. 11.

Human Rights Council, Rep. of the Working Group on the issue of discrimination against women in law and in practice (discrimination against women with regard to health and safety), (32nd Sess., 2016), para. 63, U.N. Doc A/HRC/32/44 (2016), paras. 76, 78.

[46] Ibid, 449.

[47] Ibid, 427.

[48] P Abrams, ‘The Bad Mother: Stigma, Abortion and Surrogacy’ (2015) 43(2) Journal of Law,

Medicine & Ethnics 179, 185.

Cairns, I., & O’Donoghue, M. (2024). Surrogacy and Criminal Law. In S. Shakargy, C. Achmad, & K. Trimmings (Eds.), Research Handbook on Surrogacy and the Law (1 ed., pp. 240-262). (Research Handbooks in Family Law series). Edward Elgar Publishing Ltd. https://doi.org/10.4337/9781802207651.00019

[49] CEDAW Committee, Concluding observations on the ninth periodic report of Ukraine, UN Doc: CEDAW/C/UKR/CO/9 (1 November 2022), para. 46d; CEDAW Committee, Concluding observations on the sixth periodic report of Cambodia, UN Doc: CEDAW/C/KHM/CO/6 (12 November 2019), para. 47c.

[50] See for example New York State 2021 Child-Parent Security Act (CPSA), or the Constitutional Court of Colombia (2024) in Judgment T-232, paras. 131–135, wherein the Court urged the State to enact comprehensive legislation on surrogacy in order to prevent foreign nationals from taking advantage of the legal void to enter into surrogacy agreements with Colombian women, without any State oversight or protections.