UN special rapporteur rejects equivocation, condemns all surrogacy

(The Daily Signal) Recently, a United Nations human rights official appeared before a U.N. committee to present her research on the topic of surrogacy. For social conservatives skeptical of anything done by U.N. officials, it was a refreshing change of pace.

The report, written by Reem Alsalem, special rapporteur on violence against women and girls, examined surrogacy through the lens of violence against women and girls. It concluded that the practice of surrogacy—whether in its “altruistic” form or commercial—commodifies and exploits women and children. And despite surrogacy’s rapid global expansion, the report noted, it is incompatible with human rights.

After detailing many of the ways surrogacy harms women and children, the new report ultimately recommends that all countries ban surrogacy completely, calling upon U.N. member states to adopt a legally binding treaty that would prohibit surrogacy globally while supporting its victims.

The special rapporteur’s report, first released in July, has already influenced policy discussions in several countries. In September, the Slovak Republic adopted a constitutional amendment prohibiting surrogacy. Meanwhile, governments in Australia, Ecuador, and San Marino are currently reviewing the legal status of surrogacy in their countries.

Other developed countries have a wide range of positions on surrogacy.

Last year, Italy banned its citizens from going abroad to have a baby through surrogacy. Along with Spain, France, and Germany, it also outlaws all forms of surrogacy domestically. The U.K. limits the amount of money that commissioning parents can pay a surrogate, while in Greece, the surrogate mother has no legal rights at all over the child.

The Wild West

While most developed nations have outlawed or strictly regulated commercial surrogacy, the United States is in the minority in its explicit support of the practice.

Surrogacy is a particularly underregulated industry. Unsurprisingly, California and New York are the leaders in the American surrogacy market. Nearly all states permit surrogacy and enforce surrogacy contracts, while Louisiana, Michigan, and Nebraska are the only states in which it is illegal.

Sadly, in stark contrast to the screening processes for adoptive or foster parents, there are almost no limits to who can enter into a surrogacy contract. This allows all kinds of bad actors to commission a child.

For this reason, the United States is a leading destination for foreigners seeking to commission a baby.

As Heritage Foundation experts Emma Waters and Simon Hankinson put it in a report last year, “The international ‘rent-a-womb’ industry is disproportionately fueled by Chinese nationals (41.7 percent), with France (9.2 percent) and Spain (8.5 percent) as the next highest nationalities” employing surrogates in the United States.

Selling Children

Commercial surrogacy contracts amount to the sale of a child. As David Smolin, a leading legal expert on surrogacy, points out, “intending parents are not merely paying for a child to be created, gestated, and birthed, for they certainly would not be satisfied unless they were also given exclusive physical and legal custody of the child.” It’s hard to see how this is different in kind from purchasing a designer puppy from a dog breeder.

In fact, the primary legal difference between selling a baby—which is rightly illegal—and a commercial surrogacy contract is the timing. If the contract is signed prior to the child’s conception, it is a legal transfer of parental rights from the surrogate to the commissioning parents. However, if the parties sign the contract after the child is conceived, they’re guilty of child trafficking.

While not a party to the U.N. Convention on the Rights of the Child, the U.S. has signed and ratified the convention’s optional protocol banning the sale of children. Unfortunately, the official position of the U.S. is that “surrogacy arrangements fall outside the scope” of the protocol’s protections against child exploitation.

Children’s Rights

Regardless of international law, a child has a natural right to know and be cared for by his or her parents. And parents have a duty to direct the upbringing of their child. A proper understanding of parental rights recognizes the family as the fundamental unit of society and the best protector of children.

In contrast, surrogacy puts the desires of adults over the needs of children. In doing so, it sacrifices the natural right of a child to be cared for by his or her mother and father.

Those who employ surrogates are usually those unable to have their own biological children: single men, same-sex couples, and women who are unable to carry a child. That means any child raised by commissioning parents will have been intentionally separated from at least one of his or her parents.

The child born of a surrogate would never consent to the intentional loss of his or her mother. As child rights advocate Katy Faust explains, surrogacy “splices what should be one woman, ‘mother,’ into three purchasable and optional women.” These are the genetic mother (the egg donor), the birth mother (the surrogate), and the social mother (commissioning parent).

According to Faust, “for children, none of these three mothers are optional, and anytime they are not found in the same woman, the child experiences loss … . Surrogacy intentionally, and often commercially, forces a child to lose one or all of them.”

That is an injustice against the child, no matter how much the commissioning parents desire to have him or her.

To Regulate or to Ban?

Alsalem, the U.N. rapporteur, is no stranger to controversy. During her tenure at the U.N., she has already tackled the contentious topics of gender ideology, prostitution, and violence against women and girls in sports.

Her latest report on surrogacy was met by its own share of emotional exchanges. While diplomats from several countries welcomed the report, many bristled at Alsalem’s unequivocal condemnation of surrogacy.

The representative from Australia argued that surrogacy “is not inherently exploitative” and that Australia is committed to “ethical surrogacy in accordance with human rights law.” The diplomat from Latvia noted that surrogacy is a way people build their families, implying that banning it would be undesirable. The South African representative called for regulating surrogacy without banning it. And the diplomat from Spain spoke in favor of “the rights of LGBTQ people” in the context of surrogacy.

But in her conclusion, Alsalem rejected the idea that surrogacy can be both legal and protective of human rights. “The fact is,” she said, “that commissioning parents pivot to where there are the [fewest] regulations, the least safeguards, and the cheapest options.”

The more we normalize surrogacy, the more common its use will become. Legal doublespeak and regulation cannot address the inherently exploitative nature of surrogacy. If government leaders really want to protect human rights, they should heed the special rapporteur’s advice and ban the practice entirely.