The Hague Conference explores private international law aspects of surrogacy

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The Hague Conference on Private International Law published on 25 February 2016 the report of the Experts’ Group on Parentage / Surrogacy, who met the same month. The experts represented 21 States from all regions, including some States of origin as well as some receiving States in relation to international surrogacy arrangements (ISAs).

The mandate of the Group is to explore the feasibility of advancing work on the private international law issues surrounding the status of children, including issues arising from ISAs.

The issues are topical as demonstrated by the cases delivered on 3 July 2015  by the highest judicial formation (Assemblée plénière) of the French Supreme Court for private law, decisions on, and in favour of, international surrogacy: case no 619, 3rd July 2015 (no 14-21.323; ECLI:FR:CCASS:2015:AP00619) and case no 620, 3rd July 2015 (no 15-50.002; ECLI:FR:CCASS:2015:AP00620). The Hague Group was asked to first consider the private international law rules regarding the legal status of children in cross-border situations, including those born of ISAs.

According to the report, the Group began its work by discussing specific case examples, a discussion which revealed significant diversity in national approaches. Surrogacy arrangements are prohibited in some States, permitted in other States and unregulated in others. The absence of uniform private international law rules or approaches with respect to the establishment and contestation of parentage can lead to conflicting legal statuses across borders and can create significant problems for children and families, e.g., uncertain paternity or maternity, limping parental statuses, uncertain identity of the child, immigration problems, uncertain nationality or statelessness of the child, abandonment including the lack of maintenance.

Children’s legal parentage is an issue of international concern and it is the gateway through which many of the obligations owed by adults to children flow. It is a legal status from which children derive many important rights (e.g., identity, nationality, maintenance, inheritance). It was noted that the topic of private international law rules on parentage has not been included in existing Hague Conventions so far. States have diverse approaches with respect to rules on jurisdiction, applicable law, and recognition in the context of legal parentage including assisted reproductive technologies (“ART”) and ISAs.

Regarding ART and ISAs, a majority of States do not have specific private international law rules and, as a result, apply in such cases their general private international law rules. Regarding jurisdiction, issues can arise in the context of legal parentage being established by or arising from: (1) birth registration; (2) voluntary acknowledgment of legal parentage; or (3) judicial proceedings. Issues can also arise in the context of the contestation of legal parentage. In their experience the experts had not encountered significant jurisdiction issues as a stand-alone topic. Indirect jurisdiction rules should however be discussed. Regarding applicable law, there is a split between those States whose private international law rules point to the application of internal substantive law (lex fori) and those whose private international law rules may also lead to the application of foreign law. Further consideration of uniform applicable law rules was needed and the feasibility of unifying the connecting factors that States use for the purpose of determining which law to apply should be explored.

Regarding recognition, States enjoy diversity with respect to the recognition of foreign public documents such as birth certificates or voluntary acknowledgements of parentage. There is more congruity of practice with respect to the recognition of foreign judicial decisions. Accordingly, it would be useful to have further discussions on the feasibility of unifying the rules on the recognition of foreign public acts and judicial decisions on parentage, taking into account public policy concerns, including those stipulated in domestic law. In all cases, co-operation between State authorities could be a means of alleviating the significant problems aforementioned.

(Altalex, 16 May 2016. Article by Emmanuel Guinchard)

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