By Renate Klein, Guest Contributor
The Hague Private International Law Conference (HCCH) was established in 1983 and has been described as “A melting pot of different legal traditions, it develops and services multilateral legal instruments, which respond to global needs.” It has a Permanent Bureau at The Hague and countries need to become paying members. There are currently 91 members: 90 States (including the US) and the European Union. But you can also be a paying non-Member and thereby become a ‘Contracting Party’. We are told that the work of the HCCH covers over 150 countries around the world.
No one has ever been able to convincingly tell me why the world needs this private international Hague Conference that authors a lot of Private International Law (PIL) Instruments and Conventions, such as for example the 1980 “Hague Convention on the Civil Aspects of International Child Abduction” which has led to the plight of the Hague Mothers.
In 1993, the HCCH developed “The Convention on Inter-Country Adoption “– thoroughly condemned by critics of adoption. It is described as: “The convention aims to ensure that intercountry adoption only occurs when in the best interests of the child.”
“In the best interests of the child” is what HCCH might want to write on their banner – and indeed this is their stated intention regarding a Convention on Surrogacy and/or a Protocol on Parentage, one of their current projects.
Since 2015, a group of about 30 international ‘experts’ – mostly lawyers – have been meeting annually (occasionally twice a year) to work on such a Convention and/or Protocol. In 2019, they were given a year’s extension by the governing group of the HCCH: the Council on General Affairs and Policy (CGAP). In November 2022, they submitted their 50-page Final Report to the Council which was discussed in March 7-10, 2023.
Abolitionists were expecting the worst: that the Final Report would include the text of a finished Convention on Surrogacy and/or a Protocol on Parentage.
Luckily for us, this was not the case. The 50-page report contains neither a Draft Convention on Surrogacy nor a Protocol on Parentage. What it is, is 50 pages of ‘legaleze’ detailing in what ways these eminent experts agreed – or more often – disagreed with one another about a) what should be included in these instruments and b) how they should be presented.
It took me two half days to read and digest this report. I fell asleep twice, and I congratulated myself at least 20 times that I had not become a lawyer, so tedious were these pages.
In the end though, the incredible amount of disagreement in this Final Report made it clear that the working group had not produced a fully- fledged document on surrogacy and/or parentage. What they wanted is more money to continue their deliberations, which I thought they would be granted: You don’t throw $US1 million or so (my own calculation of costs) since 2015 and then give up without a product. I expected that they might get a couple of years’ extension by the Council.
This is exactly what happened: in their deliberations on March 7-10 2023, CGAP decided that the working group should continue for at least two more years.
They should focus on one of the instruments (Convention or Protocol). They should draw on their Final Report from Nov 2022 and see if any consensus can be reached. Next, they should report back to CGAP in 2024.
By now you will probably ask: what is actually being deliberated? It is all about parentage being bestowed on children born of international surrogacy agreements (and as a matter of fact born of any other kind of conceptions nothing to do with surrogacy). You really need to read these 50 pages to see how many different ways are proposed to give these children ‘safety’ and an ‘identity’. The most important factor is, however, to make sure that the ‘surrogate mother’ (and her partner if there is one) are disappeared and replaced by the ‘commissioning parents’ – the baby buyers in my language.
It is true that the current ways of acquiring parentage for baby buyers are cumbersome: in Australia (where only altruistic surrogacy is allowed) you either have to adopt a child born by a so-called surrogate mother, or go before a court to be proclaimed the legal parents of the child (or children) to which the ‘surrogate mother’ has to agree. This is both costly and time-consuming. So, the idea to have a piece of paper called ‘Parentage Order’, which, if your country is a signatory to The Hague, will make you the legal parent of the surrogacy-born child is highly desirable. That is why such a ‘Parentage Order’ is pushed like crazy by pro-surrogacy groups internationally. I predict that the working group will settle on developing a Protocol for a ‘Parentage Order’ rather than a Convention on Surrogacy (that can always come later!).
But those of us who want to stop surrogacy do not want anything that will make the surrogacy procedure easier. Which is what such a Parentage Order would do, thus encouraging more people to exploit women and cruelly remove children from their mothers.
The HCCH is not alone in pushing their ‘in the best interest of children’ projects.
Since 2021, a number of large international pro-surrogacy groups tell us that their mission is to protect the children born of surrogacy.
One of them is CHIP, whose name says it all: Child Identity Protection.
But the biggest push to protect children comes from International Social Services (ISS), an established NGO domiciled in Geneva which is concerned with the welfare of children who are refugees, migrants – and born of surrogacy. In March 2021, a group of over 100 international ‘experts’ – amongst them Maud de Boer-Buquicchio, a former UN Special Rapporteur on the sale and sexual exploitation of children (who should know better!) – and lots of internationally known strong promoters of adoption, created the “Verona Principles: Principles for the protection of the rights of the child born through surrogacy.”
The Verona Principles are a bit like the Yogyakarta Principles for transgender people: those are a blueprint for transgenderism and these a blueprint for surrogacy. They were both written by a big interest group and have never been ratified by the UN or other international bodies. But they are often treated as if they were official international instruments.
The Verona Principles are a set of rules of how to do surrogacy. Not to consider whether surrogacy can ever be ethical and should exist at all; no, simply to say that surrogacy is here to stay, and these are the rules for countries to follow how surrogacy must be done so that children are protected.
Such statements ignore the fact that commercial surrogacy is only legal in a very small minority of countries in the world and almost all of Europe is still surrogacy-free (but countries such as Columbia want to allow altruistic surrogacy and Germany and Norway are toying with this idea too).
With their 18 Principles – having titles like ‘Human Dignity’, ‘Fundamental Rights of the Child’ etc – the Verona Principles are the bulldozers of neoliberal politics that wag their fingers into our faces and say “Do surrogacy as we tell you or else.”
When women are mentioned in these Principles – only once, in Principle 7 – we are advised that, “The surrogate mother should be in a position to make independent and informed decisions free from exploitation and coercion.”
Really?? This is laughable. This sentence rules out about 98% or more of all surrogacies. Who are these ‘experts’ kidding?
But the Verona Principles sound good and lots of ordinary people will fall for them: after all, don’t we all want only the best for children everywhere (and who cares about the women)! No doubt, ISS is frustrated about the delay of HCCH’s Protocol for Parentage Orders which they would want to happily marry with their Verona Principles.
So, what can we do?
Firstly, google if your country/state is a member of the Hague Conference (HCCH). If yes, contact the authority in your country/state that deals with surrogacy (this is often the Attorney General’s Office). Let them know in clear language that we do not need a Protocol for Parentage Orders by the HCCH). Add that you are an abolitionist and want surrogacy abolished!
Decent people who are basically critical of surrogacy often say: “… but we have to regulate surrogacy because it exists.” What they forget is that if we closed down surrogacy worldwide today, we would only have to deal with say, a maximum of 1000 to 1500 babies, some of whom are still in their mothers’ wombs, and some others on their way to the countries of the baby buyers.
Unlike in adoption where a child already exists that will need a permanent home of some kind if their parents are dead or can’t care for them, in surrogacy, the business of manufacturing an embryo and then implanting this embryo into the birth mother’s womb only starts after a contract has been signed. In other words, there are no pre-existing babies: it is simply not true that we cannot abolish surrogacy “because of the children.”
In CGAP’s 2023 decision to enable the working group on Surrogacy/Parentage to continue for another one to two years, one sentence in particular could spell danger:
“CGAP encouraged Members to designate delegates who can speak to the policy views of their State.” In other words, the new working group could be stacked with ‘experts’ from countries who are very keen to see a Protocol for Parentage Orders become reality.
However, the sentence that, to me sounds absolutely ludicrous is: “CGAP reiterated that any work by the HCCH in relation to international surrogacy arrangements should not be understood as supporting or opposing surrogacy” (my emphasis).
We really have to seriously ask the HCCH if it understands the meaning of the words it publishes. If it did not support surrogacy, there would be Zero need for any Hague Surrogacy Convention or Protocol on Parentage Orders.
A world without surrogacy is possible!
Bionote: Dr Renate Klein is a biologist and social scientist. She is the author of Surrogacy: A Human Rights Violation (2017 in English; 2019/22 in German, <https://www.spinifexpress.com.au/shop/p/9781925581034> ) in which she discusses meetings of the HCCH working group on the Surrogacy Convention/Protocol on Parentage Orders since 2015. She was an original signatory of SSN in 2015 and is a member of FINRRAGE, ABSA (Stop Surrogacy in Australia) and CIAMS (France).
 The “Hague Mothers” have been in the news recently: they are women who under this misogynist Convention must return their children to their husbands even if there is documented violence from the man, and the woman fled to safety with her children to another country.
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