The UN special rapporteur's report on surrogacy: Biased from the outset

The United Nations special rapporteur (SR) on 'violence against women and girls, its causes and consequences' has published her report, The Different Manifestations of Violence against Women and Girls in the Context of Surrogacy, which recommends prohibition of surrogacy on a global level. The report is to be presented to the UN General Assembly in October.

In the report, the SR, Reem Alsalem, finds surrogacy to be 'characterised by exploitation and violence against women and children', which 'reinforces patriarchal norms by commodifying and objectifying women's bodies and exposing surrogate mothers and children to serious human rights violations'.

SRs are experts in human rights mandated by intergovernmental bodies – in this case the UN Human Rights Council – to investigate situations in specific countries or certain thematic issues. SRs are neither UN officials nor employees; they serve in a personal capacity which is supposed to guarantee their independence and objectivity.

It is obviously good that the UN keeps an eye on global human rights issues, as it cannot and should not excuse either gross or systemic human rights violations anywhere. Given this responsibility – and the mandate to protect human rights – we should be entitled to expect objectivity in SRs' investigations, and for those investigations to be comprehensive and reach justified conclusions.

However, even the framing of the call for evidence that formed the foundation of this report was problematic. A SR whose expertise is in violence against women and girls (VAWG), asking about surrogacy in that context already demonstrated potential bias, seemingly coming from the position that surrogacy is always and inevitably linked to human rights abuses.

Despite this, I was still surprised that the SR's report seriously lacked objectivity and, for the most part, cited only those voices that echo her own. Others, including me, submitted evidence which was ignored, including peer-reviewed studies on good practice in surrogacy and on positive outcomes for children, families and surrogates (see responses by Sarah Jefford and Stephen Page). Any evidence that was positive about surrogacy was either not mentioned or was dismissed, either out of hand or (ironically) for being methodologically flawed.

The SR said she 'received some 120 submissions from different stakeholders' and convened online consultations with 78 experts (including parents, agencies, medical experts and women with lived experiences of surrogacy). She also reports relying on 'reputable secondary sources', but says these were 'few, given their weaknesses'. The cited submissions tended to reflect anti-surrogacy positions and those with which Alsalem agrees. The selectivity in the evidence relied on raises huge questions about how the report can justify calling for a global prohibition of surrogacy in all its forms.

Thematic mandates such as Alsalem's have a real potential to highlight human rights abuses where they happen, and doing so means there is potential for cooperation between nations and for change. But, in lumping all surrogacy together as one concept, and starting from the very principle that it is always a human rights abuse – let alone ignoring any evidence to the contrary – Alsalem reveals that even human rights experts can be biased.

Her report also fails to acknowledge that a global prohibition on surrogacy will neither curtail demand nor stop bad actors. Prohibition would only drive surrogacy underground, with the end result likely to be more human rights abuses, to the detriment of women and children.

This has been highlighted by Women Deliver, a well-known global gender equality and women's rights organisation, in its briefing note Surrogacy: A Human Rights-Based Approach. This document is based on a rigorous human rights analysis, grounded in consultations from across regions, and make recommendations for rights-based regulation. It finds that 'surrogacy is a vital pathway to family formation and is essential to the realisation of human rights, including the right to found a family, to bodily autonomy, to equality, and to non-discrimination'.

If the real concern behind the SR's report is the treatment of some women, where there is exploitation, coercion or even trafficking behind surrogacy, then there are better ways to target this. Countries that permit surrogacy must (re)consider their laws, to attempt to ensure best practice – a process already undertaken (but on hold while waiting for a government response) in the UK and Ireland (see BioNews 1289 and 1301), and ongoing in other countries, including Australia and New Zealand.

Globally, the response should be to agree on principles that uphold human rights, especially across borders, based on careful consideration of evidence and input from all concerned, including children's rights organisations. Such work is already being attempted by the Hague Conference on Private International Law, and some generally agreed (though non-binding) principles can already be seen to have come from, for example, the International Social Service, both following wide-reaching international consultations. We should support such attempts alongside pushing for improved domestic regulation wherever we live.

Thankfully, we know that while surrogacy does raise ethical issues in some contexts, especially in some cross-border situations, it is entirely capable of being practised without violating human rights. When practised ethically, it is a means of family formation that brings joy to many. Peer-reviewed studies show that – within the right frameworks – surrogates generally feel positive about their experience and not that they have suffered abuse. Crucially, also, emerging studies with children born from surrogacy or whose mothers were surrogates show that they feel positively about it too.

This SR report is deeply methodologically flawed and problematic in its conclusions and proposed solution. In another context, I have said that if the report was written as a dissertation by one of my law students, I'd have had difficulty passing it because of its selective use of sources, internal confirmation bias and reliance on bare assertions rather than evidence.

It is a real insult to those families created by surrogacy, to children growing up knowing they were conceived this way, and to the surrogates who gave birth to them. I really hope they ignore (or fight back against) it.