Parentage / Surrogacy
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 technologies 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 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, contestation and 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: it is now well-known that surrogacy is a global business. This has created a number of challenges, especially when surrogacy arrangements involve parties in different countries. In particular, international surrogacy arrangements (ISAs) can often result in the difficulties described above concerning the establishment or recognition of the legal parentage of the child(ren) born as a result of the arrangement, sometimes rendering the child parentless. 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 of children, as well as in relation to international surrogacy arrangements more specifically.
In 2015, the Council on General Affairs and Policy (CGAP) of the HCCH decided that an Experts' Group should be convened to explore the feasibility of advancing work in this area. CGAP decided that the Experts' Group should be geographically representative and be composed in consultation with Members.
Meetings of the Experts’ Group have, thus far, taken place in February 2016, January/February 2017, February 2018, September 2018, January/February 2019 and October/November 2019 (for more information, please refer to the Reports available below).
In March 2020, CGAP renewed the mandate of the Experts’ Group for two years and endorsed the continuation of the work in line with the latest report of the Experts’ Group, 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 international surrogacy arrangements.
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.
- 2019: Report of the October/November 2019 meeting of the Experts’ Group on Parentage / Surrogacy (6th meeting)
- 2019: Report of the January/February 2019 meeting of the Experts’ Group on Parentage / Surrogacy (5th meeting)
- 2018: Report of the September 2018 meeting of the Experts’ Group on Parentage / Surrogacy (4th meeting)
- 2018: Report of the February 2018 meeting of the Experts’ Group on Parentage / Surrogacy (3rd meeting)
- 2017: Report of the January/February 2017 meeting of the Experts’ Group on Parentage / Surrogacy (2nd meeting)
- 2016: Report of the February 2016 meeting of the Experts’ Group on Parentage / Surrogacy (1st meeting)
- 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.
Chronology of the Project