Parentage / Surrogacy - 2011 onwards

At its 3-6 March 2020 meeting, CGAP welcomed the report of the Experts’ Group and endorsed the continuation of its work as proposed, noting that work should focus on developing both:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement.

CGAP agreed that at least two meetings of the Experts’ Group should be convened prior to the 2022 meeting of CGAP, and that intersessional work be carried out with the assistance of a smaller group of experts.

The Experts’ Group will continue to develop potential provisions for inclusion in both possible future instruments as set out in its report and, in particular, will continue its discussions on the feasibility of including provisions, in both the Convention and the Protocol, in relation to applicable law rules, public documents and cooperation.

CGAP underlined that any work by the HCCH in relation to international surrogacy arrangements should not be understood as supporting or opposing surrogacy.
The Experts’ Group will provide a short update on progress to CGAP at its 2021 meeting and will provide a full report at its 2022 meeting.

The Experts’ Group on the Parentage / Surrogacy Project met from 29 October to 1 November 2019.

At this meeting, the Group recommended that CGAP approve that the Experts’ Group continue its work on a Convention and a Protocol, in order to complete the drafting of provisions for the two instruments along the lines discussed in its Report. To this end, the Group recommended meeting on at least two more occasions, and reporting to CGAP in March 2022 in order for CGAP to make a final decision on whether to proceed with the project. An oral report on progress would be presented at CGAP in 2021. The Group also recommended that intersessional work be carried out with the assistance of a smaller group of experts to refine the drafting of provisions for the Convention and the Protocol and to develop possible other approaches to those instruments. The intersessional work would start as soon as possible, using information and communication technology wherever possible and appropriate.
In this regard, the Group recommended that CGAP direct the PB to undertake the necessary work with a view to preparing the meetings of the Group prior to the 2022 meeting of CGAP. The Group encouraged the PB to continue to allocate the relevant resources to this project. The Group supported the continuing use of consultants and encouraged Member States to put secondees at the disposal of the PB for this project.

At its 8-11 March 2019 meeting, CGAP welcomed the reports of the Experts’ Group. It endorsed the continuation of the work in line with the latest report of the Experts’ Group and noted that most Experts recommended that future work focus on developing both:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements. 

CGAP agreed that another meeting of the Experts’ Group should be convened prior to CGAP’s 2020 meeting. The initial task of the Experts’ Group is to propose provisions for inclusion in possible future instruments relating to the recognition of judicial decisions as set out in the Reports of the Experts’ Group. 

CGAP acknowledged that the feasibility of making provisions in relation to applicable law rules and cooperation requires further study and discussion. 

CGAP underlined that any work by the HCCH in relation to international surrogacy arrangements should not be understood as supporting or opposing surrogacy. 

CGAP decided that intercountry adoptions, including those within the scope of the 1993 HCCH Intercountry Adoption Convention, should be excluded from the scope of the Parentage / Surrogacy Project. CGAP emphasised the importance of not undermining the 1993 Intercountry Adoption Convention. 

The Experts’ Group will report to CGAP at its 2020 meeting.

See the Conclusions and Recommendations of the 2019 CGAP (paras 7 to 12).

The Experts’ Group on the Parentage / Surrogacy Project met from 29 January to 1 February 2019. 

The conclusions and recommendations of that meeting reflect the discussions during both the September 2018 meeting and this meeting. 

During those two meetings, the Experts reaffirmed the desirability and importance of providing predictability, certainty and continuity of legal parentage in international situations, taking into account the human rights of all parties concerned and the best interests of the child. 

Most Experts confirmed that much benefit could be gained from adding value to the existing HCCH Family Conventions by developing a binding multilateral instrument on the recognition of foreign judicial decisions on legal parentage. Most Experts agreed, in principle, on the feasibility of a separate protocol on the recognition of foreign judicial decisions in ISA cases. 

The possibility remains open at this stage of making further provisions in relation to legal parentage when there is no judicial decision. The feasibility of providing for such matters should be the subject of further discussion. 

Most Experts recommended that future work focus on the following matters:

• developing both:

• a general PIL instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from ISAs

• further consideration of other methods that could enhance the attractiveness and effectiveness of such instruments, for example, uniform applicable law rules to determine legal parentage or cross-border recognition of the status of legal parentage established by operation of law or following the act of an individual. 

In relation to working method, the initial task of the Group would be to prepare proposals for consideration in relation to provisions for inclusion in future instruments relating to recognition of judicial decisions along the lines discussed above and in the report of the fourth meeting. The Group may wish to establish a smaller drafting committee to assist with the preparation of specific proposals for discussion by the Group. In working towards the drafting of future instruments, it will be important to avoid duplication in efforts and resources. 

Most Experts therefore recommended to CGAP continuation of the work on these matters, noting the urgency previously identified. In this regard, the Group recommends that CGAP directs the Permanent Bureau to undertake the necessary work with a view to preparing a next meeting of the Group prior to the 2020 meeting of CGAP, and to allocate the necessary resources accordingly.

See the "Report of the January / February 2019 meeting of the Experts’ Group on Parentage / Surrogacy".

The Experts’ Group on the Parentage / Surrogacy Project met from 25 to 28 September 2018.

The Group reserved its final conclusions and recommendations on future work pending the results of the fifth meeting that took place in January/February 2019.

See the "Report of the September 2018 meeting of the Experts’ Group on Parentage / Surrogacy".

At its 13-15 March 2018 meeting, CGAP welcomed the Report of the Expert’s Group on Parentage / Surrogacy and its recommendations, including holding:

a. a fourth meeting in September / October 2018 focusing on:

• deepening the discussion regarding uniform applicable law rules on parentage, including how such rules might operate together with public documents which record legal parentage;
• further analysing the possibility of recognising or accepting foreign public documents which record legal parentage; and
• refining possible provisions regarding the recognition of foreign judicial decisions.

b. a fifth meeting in February 2019 focusing specifically on international surrogacy arrangements (ISAs), which would consider the feasibility of the possible application of future agreed general private international law rules on legal parentage to ISAs and the possible need for additional rules and safeguards in these cases, including the possibility of a Protocol for ISAs cases.

The Experts’ Group will report to CGAP at its 2019 Meeting.

See the Conclusions and Recommendations of the 2018 CGAP (paras 6 and 7).

The Experts’ Group on the Parentage / Surrogacy Project met from 6 to 9 February 2018

The Experts’ Group agreed on the following:

a) a next meeting of the Experts’ Group should focus on:
– deepening the discussion regarding uniform applicable law rules for parentage, including how such rules might operate together with public documents which record legal parentage;
– further analysing the possibility of recognising or accepting foreign public documents which record legal parentage; 
– refining possible provisions regarding the recognition of foreign judicial decisions, taking into account the conclusions of the Group contained in this report;
b) another meeting of the Experts’ Group should focus specifically on ISAs. In particular, the meeting would consider the feasibility of the possible application of agreed general private international law rules on legal parentage to ISAs and the possible need for additional rules and safeguards in these cases, including the possibility of a Protocol for ISAs cases.

The Group therefore recommended to CGAP that its mandate be continued to work on these matters, noting the urgency previously identified. In this regard, the Group recommended that CGAP direct the Permanent Bureau to undertake the necessary work with a view to preparing, in principle two meetings of the Group, to be held prior to the 2019 meeting of CGAP, and to allocate the necessary resources accordingly.

See the "Report of the February 2018 meeting of the Experts’ Group on Parentage / Surrogacy".

At its 14-16 March 2017 meeting, CGAP welcomed the Report of the Experts’ Group on Parentage / Surrogacy. CGAP noted the progress made at the Group’s second meeting, including its agreement in principle on the feasibility of developing a binding multilateral instrument dealing with the recognition of foreign judicial decisions on legal parentage.

CGAP acknowledged the Group’s conclusions that further discussions are needed with respect to: a) the question of how an instrument dealing with the recognition of foreign judicial decisions on legal parentage could operate; b) the recognition of legal parentage when recorded in a public document; and c) the feasibility of the possible application of future agreed general private international law rules on legal parentage to international surrogacy arrangements, and the possible need for additional rules and safeguards in these cases as well as in cases of assisted reproductive techniques.

CGAP invited the Group to continue its work in accordance with its mandate of 2015. Noting the urgency identified by the Group, CGAP instructed the Secretary General to convene a third meeting of the Group before the next meeting of CGAP. CGAP decided that the third Experts’ Group meeting should focus on the matters identified above and that the Group should report to CGAP in 2018.

See the Conclusions and Recommendations of the 2017 CGAP (paras 8 to 10).
 

The Experts’ Group on the Parentage / Surrogacy Project met from 31 January to 3 February 2017

The Experts’ Group agreed:
a) in principle, on the feasibility of developing a binding multilateral instrument dealing with the recognition of foreign judicial decisions on legal parentage. Further consideration and discussion are needed on how such an instrument could operate;
b) that owing to the diversity of approaches with respect to the determination of legal parentage and the recognition of the legal parentage when recorded in a public document, further consideration and discussion are needed in relation to this issue;
c) that owing to the complexity of the subject and the diversity of approaches by States in cases of ISAs, definitive conclusions could not be reached at this meeting as to the feasibility of the possible application of future agreed general PIL rules on legal parentage to ISAs and the possible need for additional rules and safeguards in these cases and in cases of ART. The Group concluded that further consideration and discussion of these matters are needed.

The Group therefore recommended to CGAP that its mandate be continued to work on these matters, noting the urgency already identified. In this regard, the Group also recommended that CGAP direct the Permanent Bureau to undertake the necessary work with a view to preparing a next meeting of the Group and to allocate resources accordingly.

See the "Report of the January / February 2017 meeting of the Experts’ Group on Parentage / Surrogacy".

At its 15-17 March 2016 meeting, CGAP invited the Experts’ Group to continue its work in accordance with its mandate, with a primary focus on recognition as a possible private international law mechanism for addressing the problems in this area.

See the Conclusions and Recommendations of the 2016 CGAP (para. 15).

The Experts’ Group on the Parentage / Surrogacy Project met from 15 to 18 February 2016 for the first time (in The Hague).
CGAP asked the Group to first consider the private international law rules regarding the legal status of children in cross-border situations, including those born of international surrogacy arrangements. The Group determined that, owing to the complexity of the subject and the diversity of approaches by States to these matters, definitive conclusions could not be reached at the meeting as to the feasibility of a possible work product in this area and its type or scope.

See the "Report of the February 2016 meeting of the Experts’ Group on Parentage / Surrogacy".

The Permanent Bureau published the “Background Note for the meeting of the Experts’ Group on the Parentage / Surrogacy Project” (January 2016).

See the "Background Note for the meeting of the Experts’ Group on the Parentage / Surrogacy Project".

At the 2015 CGAP (24 - 26 March 2015), Members of the Hague Conference decided that an Experts' Group should be convened to explore the feasibility of advancing work in this area.

See the Conclusions and Recommendations of the 2015 CGAP (para. 5).

The Permanent Bureau has published "The Parentage / Surrogacy Project: an updating note" (Prel. Doc. No 3 A of February 2015).

Prel. Doc. No 3 A of February 2015

At the 2014 CGAP meeting (8 - 10 April 2014), Members of the Hague Conference welcomed the work carried out by the Permanent Bureau and agreed that work should continue to further explore the feasibility of drawing up a multilateral instrument in this area. To this end, CGAP invited the Permanent Bureau to continue information-gathering, including obtaining further responses to Questionnaire No 1, in particular from States where international surrogacy arrangements take place. While CGAP noted the support expressed by a considerable number of Members for the establishment of an Experts’ Group, it decided to defer the final determination of the matter to its meeting in 2015.

Conclusions and Recommendations

The Permanent Bureau has published “The desirability and feasibility of further work on the Parentage / Surrogacy Project” (Prel. Doc. No 3 B of March 2014) and its accompanying “Study of Legal Parentage and the issues arising from International Surrogacy Arrangements” (Prel. Doc. No 3 C of March 2014)

Accompanying Study

An online Questionnaire addressed to surrogacy agencies was made available ("Questionnaire No 4").

An online Questionnaire addressed to health professionals was made available ("Questionnaire No 3").

An online Questionnaire addressed to legal practitioners was made available ("Questionnaire No 2").

A Questionnaire directed to Members of the Hague Conference and other interested States was circulated ("Questionnaire No 1").

Questionnaire No 1 

In April 2013, CGAP welcomed the oral update on progress provided by the Permanent Bureau. As decided by CGAP in 2012, the Permanent Bureau was invited to present its final Report to CGAP in 2014.

See the Conclusions and Recommendations of the 2013 CGAP (para. 10)

Online questionnaires directed to specialist legal practitioners, surrogacy agencies and health clinics will be circulated.

See the Conclusions and Recommendations of the 2011 CGAP (para. 20) and 2012 CGAP (para. 21)

Preliminary Document No 10 of March 2012, "A preliminary report on the issues arising in relation to international surrogacy arrangements" was published for consideration by Members of the Hague Conference.

Prel. Doc. No 10 of March 2012 (including a glossary of terminology)

In April 2012, following consideration of Preliminary Document No 10 of March 2012, CGAP requested that the Permanent Bureau:

"continue the current work under the 2011 CGAP mandate and further prepare and distribute a Questionnaire in order to obtain more detailed information regarding the extent and nature of the private international law issues being encountered in relation to international surrogacy arrangements, as well as in relation to legal parentage or "filiation" more broadly. The Questionnaire shall seek views on the needs to be addressed and approaches to be taken."

The Permanent Bureau was invited to present its final Report to CGAP in 2014.

Conclusions and Recommendations of the 2012 CGAP (para. 21)

Preliminary Document No 11 of March 2011, "Private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements", drawn up by the Permanent Bureau, was circulated to Members of the Hague Conference in March 2011 in fulfilment of the 2010 CGAP mandate.

Prel. Doc. No 11 of March 2011

Preliminary Document No 11 of March 2011 received a supportive response from Members and, in April 2011, led to the Permanent Bureau being asked "to intensify ... work in the area … with emphasis on the broad range of issues arising from international surrogacy arrangements".

The Permanent Bureau was also asked to "continue gathering information on the practical needs in the area, comparative developments in domestic and private international law, and the prospects of achieving consensus on a global approach", as well as to "consult with the legal profession as well as with health and other relevant professionals concerning the nature and incidence of the problems occurring in this area".

A preliminary report on progress was requested for CGAP of 2012.

Conclusions and Recommendations of the 2011 CGAP (paras 17 to 20)