Children’s rights in surrogacy
Surrogacy continues to be used as a method of family formation around the world. Children born through surrogacy have the same rights as all children under the United Nations Convention on the Rights of the Child (UN CRC) and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC). However, because of the way that the practice of surrogacy has evolved, the fundamental rights of these children are at risk, especially in international arrangements. To continue its support to States to respond to surrogacy in a way that fully respect all rights of children, Child Identity Protection (CHIP) with its special advisors has drafted two documents – firstly, a briefing note related to Priority Issues Relating to Children’s Rights Protection in 2023 and secondly, a legal memorandum in response to the latest decision of the ECtHR in cross-border surrogacy arrangements: K.K. and others v. Denmark. Any law reform efforts should ensure that the best interests of the child be the guiding principle in all surrogacy arrangements, where the Committee on the Rights of the Child recommends: “in weighing the various elements, one needs to bear in mind that the purpose of assessing and determining the best interests of the child is to ensure the full and effective enjoyment of the rights recognized in the Convention and its Optional Protocols, and the holistic development of the child.” (General Comment 14). This includes the child’s right to identity, the right not to be sold, the right to non-discrimination and as far as possible, the right to know and be cared for by his or her parents.
