The private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements
About the Project
Historically, the issue of whom the law should identify as a child’s legal parent(s) was, in most States, relatively settled. However, uncertainty has arisen in recent decades in some States as a result of a combination of changing family patterns and advances in medical science. This has given rise to a number of legal developments across States, including the law on parentage. Difficulties have sometimes arisen, however, because these developments have not been globally uniform. States’ approaches to issues such as paternity disestablishment (in light of DNA testing), assisted reproductive technology and surrogacy arrangements have varied greatly, depending on the State’s cultural, political and social environment. As a result, there is, as yet, no international consensus on how to establish and contest legal parentage in these new circumstances.
In an era of globalisation, when families cross borders with increasing frequency, these differences in States’ domestic laws can give rise to complex questions of private international law concerning the establishment or recognition of children’s legal parentage. These questions implicate children’s fundamental human rights (see, e.g., the UN Convention on the Rights of the Child, Arts 7 and 8).
In addition, a particularly "burning issue" has come to light in recent years: a brief internet search of "surrogacy" and in today's world one is a click away from hundreds of websites promising to solve the problems of infertility through in-vitro fertilisation techniques and surrogacy. It is now a simple fact that surrogacy is a booming, global business. This has created a number of challenges, above all when surrogacy arrangements involve parties in different countries. In particular, international surrogacy arrangements can often result in the difficulties described above concerning the establishment or recognition of the legal parentage of the children born as a result of the arrangement. This can have far-reaching legal consequences for all involved: for example, it may affect the child's nationality, immigration status, the attribution of parental responsibility regarding the child or the identity of the individual(s) under a duty to financially maintain the child, etc. Difficulties may also arise because the parties involved in such an arrangement are vulnerable and at risk.
Pursuant to a mandate from its Members, the Permanent Bureau of the Hague Conference on Private International Law is currently studying the private international law issues being encountered in relation to the legal parentage or "filiation" of children, as well as in relation to international surrogacy arrangements more specifically.
In 2015, the Council on General Affairs and Policy of the Hague Conference (the "Council") decided that an Experts' Group should be convened to explore the feasibility of advancing work in this area.
The Council decided that the Experts' Group should meet in early 2016 and report to the 2016 Council meeting, and that the Group should be geographically representative and be composed in consultation with Members. Members were also invited to keep the Permanent Bureau updated regarding significant developments in their States in relation to legal parentage and surrogacy.
- 2016: Report of the February 2016 meeting of the Experts’ Group on Parentage / Surrogacy
- 2016: Background Note for the meeting of the Experts’ Group on the Parentage / Surrogacy Project
- 2015: “The Parentage / Surrogacy Project: an updating note” (Prel. Doc. No 3 A of February 2015)
- 2014: “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)
- 2012: Preliminary Report on international surrogacy arrangements
- 2011: Preliminary Note on the private international law issues surrounding the status of children
Please note: this information is sought for research purposes only and a response will not always be received. Further, the Permanent Bureau is not able to provide any legal advice or assistance concerning individual cases.