Document Type

Article

Publication Date

2019

Abstract

The growth of the gestational surrogacy industry in the last few decades has raised concerns about the human rights of the parties involved. Partly due to those concerns, several of the countries where surrogacy was once widespread have recently prohibited the practice. Yet the human rights implications of surrogacy are highly complex, and it is far from clear that a global surrogacy prohibition is the best or even most feasible way to address rights concerns. This report aims to advance an understanding of the human rights impact of laws, policies and practices around surrogacy. The report considers the practice of surrogacy at a global level, as well as in the domestic country context, using Cambodia as a case study. An examination of the intersections between women’s rights, gender equality, and the rights of children and intended parent(s) reveals both the ways that surrogacy can protect and promote the rights of those involved in the practice, as well as the ways that surrogacy can threaten the rights of those same parties. The report was produced by a team of four students and two faculty members (hereafter ‘the authors’) in the International Human Rights Clinic at the University of Chicago Law School and was submitted to the United Nations Office of the High Commissioner for Human Rights (OHCHR) in order to contribute to on-going work on human rights and global surrogacy during the 2018-2019 academic year. It combines desk research, interviews, and in-country fact-finding. Desk research was conducted over the course of five months (October, November and December 2018, and January and February 2019) and aimed at gaining a holistic understanding of surrogacy practices and their implications. Research areas included the medical and technological process, applicable international and regional human rights principles, comparative domestic surrogacy legislation, academic and interest groups perspectives, harmful practices, surrogacy intermediaries, geopolitical dynamics, and country-specific contexts, especially in Cambodia. To provide a foundation for fact-finding, the authors conducted an initial set of interviews in the United States during early 2019. Interviewed stakeholders included a surrogate, intended parent(s), a surrogacy lawyer and a former public health official. Between March 20 and March 30, 2019, the authors then visited Cambodia, with assistance from OHCHR in Cambodia, to conduct in-country fact-finding. The authors interviewed various stakeholders including three surrogates, high-level public officials at the Cambodian Ministry of Justice, Ministry of Women’s Affairs and the National Committee for Counter Trafficking, investigative judges, a scholar, and representatives of non-governmental organizations in the fields of counter-trafficking and public health. The identity of most of the interviewees remains confidential for security reasons, but all interview notes are on file with the authors. This research, along with the foundational desk research, has been consolidated in this report.

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