Ensuring respect for children's human rights in donor conception and surrogacy

As medical science has created new ways for people to become parents, it has also resulted in a global industry with all the risks that can follow – especially for the children concerned, and the adults they will become. Be they conceived through the involvement of gamete donors and/or surrogates or through being the offspring of donors and surrogates, there is a real risk that the rights of the children are lost within the desires of the intended parents and those seeking to help meet those desires.

All too often, there is an underlying assumption – sometimes expressed with apparent authority by professionals or services – that adults have a right to have a child. However, no such right exists in international or domestic law.

In contrast, children's human rights are internationally agreed through the UN Convention on the Rights of the Child (UNCRC) as ratified by all countries except the USA. Its Optional Protocols (OPSC) may also be enacted domestically. Subsequent reports and rulings make clear that interpretation of the UNCRC applies to children conceived through the aid of donor conception and surrogacy, including through informal arrangements.

In 2025, a group came together to develop two important publications: one for policymakers and one for practitioners, available in English, French and Spanish. The group was brought together by the international NGO Child Identity Protection, and comprised members with international expertise in children's human rights, people with lived experience as donor-conceived people, parents and donors, plus a small number of those with relevant clinical, research and legal experience. The work was supported in part by The Brocher Foundation.

For policymakers

The first publication is aimed at policymakers and details the applicable human rights, in particular:

• the right to human dignity (Article 1, Universal Declaration of Human Rights)
• the child's right to identity and to know their [full] origins (Article 7, UNCRC)
• the child's right to have their identity preserved by the state (Article 8, UNCRC)
• the child's right to have their best interests upheld by the state (Article 3(1) UNCRC)
• the child's right not to be sold (Article 2(A) OPSC)

In each case, it describes their applicability to donor conception and/or surrogacy.

We were privileged to be part of this initiative, and it was fascinating to be in a space where the dominant disciplines were policymakers, practitioners and lawyers whose core focus was on children's rights rather than those from the fertility world with medical expertise.

Due to certain features and legal challenges particular to surrogacy, this publication also includes specific sections on surrogacy. These include reference to states that prohibit surrogacy but whose citizens may nevertheless travel outside those jurisdictions, access surrogacy elsewhere and expect to be able to return home with the child. It also covers states that permit surrogacy for both their own citizens and, sometimes, for others who travel into their jurisdiction to access services. It argues that state responsibilities entail actively ensuring children's rights are respected in all situations, and sets out what this means in practice.

The publication is also very clear that some aspects of commercial surrogacy – in particular the use of payments to surrogates rather than expenses, the use of enforceable pre-birth agreements and the lack of regulation of surrogacy agencies and intermediaries – can violate the rights of children not to be sold. This is a view also held by the UN special rapporteur on the sale and sexual exploitation of children in her 2018 report on surrogacy.

Finally, it sets out a series of recommendations for achieving full compliance on the right to identity including preservation and access to information; the right to birth registration and nationality; limitations on donations of gamete(s) and surrogacy arrangements; children's right not to be sold; best interest determination; regulation of intermediaries; cross-border situations; and a child's right to access justice and effective remedies in these contexts.

For practitioners

The second publication is aimed at practitioners in any setting where they may have contact with intended parents, donors or surrogates, or with donor-conceived and surrogate-born people across their lifespans.

Its focus is on identifying the barriers to fully respecting children's human rights that may be present for both service providers and individual practitioners, and on suggesting ways to lower them. These include the need for service policies that require, for example, staff to be trained in human rights, to acknowledge explicitly from the outset the importance of openness about genetic and gestational information, to provide an appropriate mix of medical, scientific and psycho-social staff where fertility treatment services are concerned, to keep a clear distinction between psycho-social counselling and any 'suitability to parent/donate/be a surrogate' assessments, and to ensure robust record-keeping including biographical information.

It also sets out the responsibility on individual practitioners to consider how to promote respect for children's human rights while attending to the sometimes complex emotional and social needs of intended parents, donors and surrogates that may heighten any resistance to being able to recognise the primacy of children's rights. It recognises that such resistance may also be present for some professionals and stresses the need for it to be recognised and lowered.

Both documents make clear, importantly, that 'prioritising' legal parentage without giving due consideration to other rights inadvertently means these other rights are often ignored. For example, assuring legal parenthood does not necessarily meet the child's right to know all the 'parents' involved in their creation or birth – or even to know of their origins. Neither does the continuance of donor anonymity.

They also explain the importance of not using the term 'best interests' outside of an evidence-based legal context. When used colloquially, it can lead to confusion as it more often expresses the views of the professional, service or academic concerned, no matter how well-intentioned.

These two documents also build on the 2021 Principles for the Protection of the Rights of the Child Born through Surrogacy (Verona Principles), developed through international consultations.

It is also important to note the work, over many years, of the permanent bureau of the Hague Conference on Private International Law on the legal parentage of children, including where international surrogacy arrangements are involved. Of concern is that its Council on General Affairs and Policy decided not to advance to a Special Commission to draft a possible convention on surrogacy, with the understanding that this issue may be revisited at a later stage.

However, there is also some promise in the fact that the Council of Europe, through its European Committee on Legal Co-operation, is currently considering the preparation of a draft recommendation or other non-binding instrument to assist member states in protecting the rights of donor-conceived persons to know their origins.

The need for the two documents discussed here, together with the current lack of international cooperation mechanisms, reflects the complexity of how to secure a way forward in approaching either donor conception by itself, or surrogacy with or without the use of donor gametes. Either can be carried out informally and/or through an 'industry' that is increasingly global and commercial, with inherent associated limitations for the jurisdictions involved.

This makes it all the more crucial that the human rights of children who are born through these routes or who are otherwise affected by them are placed right at the core of national policy, professional practice and service delivery in the here and now.