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Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements

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Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements GENERAL AFFAIRS AND POLICY AFFAIRES GÉNÉRALES ET POLITIQUE Prel. Doc. No 3C (The Study) Doc. prél. No 3C (L'étude) March / mars 2014 A STUDY OF LEGAL PARENTAGE AND THE ISSUES ARISING FROM INTERNATIONAL SURROGACY ARRANGEMENTS *** ÉTUDE SUR LA FILIATION JURIDIQUE ET QUESTIONS DÉCOULANT DES CONVENTIONS DE MATERNITÉ DE SUBSTITUTION À CARACTÈRE INTERNATIONAL Preliminary Document No 3 C of March 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference Document préliminaire No 3 C de mars 2014 à l’attention du Conseil d’avril 2014 sur les affaires générales et la politique de la Conférence Churchillplein 6b, 2517 JW The Hague - La Haye | The Netherlands - Pays-Bas +31 (70) 363 3303 +31 (70) 360 4867 | [email protected] | www.hcch.net Asia Pacific Regional Office - Bureau régional Asie-Pacifique | S.A.R. of Hong Kong - R.A.S. de Hong Kong | +852 2858 9912 Latin American Regional Office - Bureau régional Amérique latine | Buenos Aires | Argentina – Argentine | +54 (11) 4310 8372 TABLE OF CONTENTS INTRODUCTION....................................................................................................... 4 A. THE ESTABLISHMENT AND CONTESTATION OF LEGAL PARENTAGE IN INTERNAL LAW ............................................................................................... 5 1. A comparative overview of the internal laws and procedures of States in relation to legal parentage .......................................................................... 5 (a) Birth Registration ............................................................................... 5 (b) The establishment of legal parentage: the basic principles ....................... 8 (c) Assisted Reproductive Technology ....................................................... 11 (d) Surrogacy Arrangements ................................................................... 15 (e) The contestation of legal parentage ..................................................... 19 (f) The acquisition of nationality by children .............................................. 22 (g) Legal developments .......................................................................... 24 2. Relevant federal, regional and international work concerning the establishment and contestation of legal parentage and related areas ................ 26 3. Conclusion on internal laws ........................................................................ 32 B. PRIVATE INTERNATIONAL LAW AND CO-OPERATION RULES CONCERNING LEGAL PARENTAGE ........................................................................................ 34 1. A comparative overview of the private international law and co-operation rules of States in relation to legal parentage ................................................. 34 (a) Birth registration and the establishment of legal parentage ..................... 34 (b) Possible recognition of legal parentage already established abroad ........... 39 (c) Private international law rules concerning the contestation of legal parentage ........................................................................................ 47 (d) Legal effects of recognition ................................................................. 48 (e) Legal developments in private international law .................................... 49 2. Bilateral, regional or international efforts towards greater co-operation or unification of private international law rules concerning legal parentage and / or related areas ...................................................................................... 49 3. Problems reported (outside the international surrogacy context) ...................... 51 C. INTERNATIONAL SURROGACY ARRANGEMENTS: A CLOSER ANALYSIS OF A SPECIFIC PHENOMENON ............................................................................ 55 1. ISAs: setting the scene .............................................................................. 55 (a) The numbers and geographical scope of ISAs........................................ 56 (b) The nature of the arrangements .......................................................... 59 (c) The parties and intermediaries involved ............................................... 61 2. Some key problems identified in ISA cases ................................................... 64 (a) The legal status of children and intending parents ................................. 64 (b) Child Welfare ................................................................................... 79 (c) Position of the Surrogate Mother ......................................................... 81 (d) Gamete Donors ................................................................................ 84 (e) Intending Parents ............................................................................. 84 (f) The competency and conduct of some intermediaries ............................. 87 (g) The financial aspects of ISAs .............................................................. 88 (h) Criminal Activity ............................................................................... 88 3. Developments in States’ approaches to ISAs, including bilateral, regional and international efforts at co-operation ....................................................... 89 4 INTRODUCTION1 This Study is the evidence-base for, and hence is integral to, Preliminary Document No 3 B of March 20142 and should be consulted alongside it. Preliminary Document 3 B considers the desirability and feasibility of future work at the Hague Conference on the “Parentage / Surrogacy Project”3 and provides recommended “next steps” in the area for the consideration of Members at the 2014 meeting of the Council on General Affairs and Policy of the Conference.4 This Study is based upon the responses to the four Questionnaires circulated by the Permanent Bureau in 2013 to: (1) Members and non-Member interested States (Questionnaire No 1);5 (2) specialist legal practitioners (Questionnaire No 2); (3) health professionals (Questionnaire No 3); and (4) surrogacy agencies (Questionnaire No 4), as well as the other submissions received by the Permanent Bureau in response to the global consultation process undertaken.6 It is supplemented by the Permanent Bureau’s own research and monitoring work, including in relation to the relevant bilateral, regional and international developments in this field. This Study is divided into three main parts: Part A: The establishment and contestation of legal parentage in internal law Part B: Private international law and co-operation rules concerning legal parentage Part C: International surrogacy arrangements: a closer analysis of a specific phenomenon Each part commences with a comparative analysis of States’ laws (mainly drawn from responses to Questionnaire No 1) and subsequently turns to examine any relevant bilateral, regional and international developments in the area. Please note: the definitions of terms used in this Study, as well as in Preliminary Document No 3 B, can be found in the updated Glossary at Annex A of Preliminary Document No 3 B. 1 The Permanent Bureau would like to thank Hannah Baker (Senior Legal Officer), the author of this Study and Prel. Doc. No 3 B of March 2014 (see note 2 below). The Permanent Bureau would also like to thank Laura Martinez-Mora (Principal Legal Officer) and William Duncan (Consultant to the Permanent Bureau) for their advice and assistance, as well as Anna Bertram (Intern) for her research assistance and Lukas Rass-Masson for his assistance regarding French law. 2 “The desirability and feasibility of further work on the Parentage / Surrogacy Project”, Prel. Doc. No 3 B of March 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference (available on the Hague Conference website at < www.hcch.net > under the “Parentage / Surrogacy Project”). 3 All information concerning the “Parentage / Surrogacy Project” can be found on the specialised section of the Hague Conference website at < www.hcch.net > under the “Parentage / Surrogacy Project”. 4 In this respect, it should be noted that information concerning the background to the “Parentage / Surrogacy Project” and why legal parentage has become an issue of international interest is contained within Sections I and II of Prel. Doc. No 3 B of March 2014 (ibid.). 5“Questionnaire on the private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements (Questionnaire No 1)”, Prel. Doc. No 3 A of April 2013 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference, available on the Hague Conference website at < www.hcch.net > under the “Parentage / Surrogacy Project”(hereinafter, “Questionnaire No 1”). 6 A full explanation of the broad consultation process undertaken by the Permanent Bureau, along with the information obtained as a result, is provided in Prel. Doc. No 3 B of March 2014 in Section I (see note 2 above). In addition to responses received to the 4 Questionnaires (46 State responses to Questionnaire No 1; 50 legal practitioner responses to Questionnaire No 2; 11 health professional responses to Questionnaire No 3; 6 surrogacy agency responses to Questionnaire No 4), 31 submissions from intending parents who have undertaken ISAs, 2 submissions from social work organisations / professionals, 2 legal practitioner association responses and information from leading non-governmental organisations in the field
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