Parentage / Surrogacy - 2011 onwards

At its 8-11 March 2019 meeting, the Council on General Affairs and Policy of the Conference 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. 

Council agreed that another meeting of the Experts’ Group should be convened prior to Council’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. 

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

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

Council 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. Council emphasised the importance of not undermining the 1993 Intercountry Adoption Convention. 

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

See the Conclusions and Recommendations of the 2019 Council (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 Council continuation of the work on these matters, noting the urgency previously identified. In this regard, the Group recommends that Council 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 Council, 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, the Council on General Affairs and Policy of the Conference 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 Council at its 2019 Meeting.

See the Conclusions and Recommendations of the 2018 Council (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 Council that its mandate be continued to work on these matters, noting the urgency previously identified. In this regard, the Group recommended that Council 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 the Council, 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, the Council on General Affairs and Policy of the Conference welcomed the Report of the Experts’ Group on Parentage / Surrogacy. The Council 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.

The Council 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.

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

See the Conclusions and Recommendations of the 2017 Council (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 Council that its mandate be continued to work on these matters, noting the urgency already identified. In this regard, the Group also recommended that Council 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, the Council on General Affairs and Policy of the Conference 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 Council (para. 15).

The Experts’ Group on the Parentage / Surrogacy Project met from 15 to 18 February 2016 for the first time (in The Hague).
The Council on General Affairs and Policy of the Conference 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 Council on General Affairs and Policy of the Conference (the "Council") (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 Council (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 Council 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, the Council 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 the Council 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, the Council welcomed the oral update on progress provided by the Permanent Bureau. As decided by Council in 2012, the Permanent Bureau was invited to present its final Report to Council in 2014.

See the Conclusions and Recommendations of the 2013 Council (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 Council (para. 20) and 2012 Council (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, the Council requested that the Permanent Bureau:

"continue the current work under the 2011 Council 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 the Council in 2014.

Conclusions and Recommendations of the 2012 Council (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 Council 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 the Council of 2012.

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