What is the issue?
Ways of achieving pregnancy through science and technology when it is not possible naturally, for example through fertility medication, in vitro fertilisation, or surrogacy, have rapidly advanced and their use proliferated in recent years. Known as assisted reproductive technologies (ARTs), States have yet to settle the complex and sensitive ethical questions involved in using them. Governments have so far mostly focused on the rights of adults to found a family, or on the prohibition of all forms of assisted reproduction, but the question of how ARTs impact children’s human rights remains underdeveloped.
What is the problem?
The way in which assisted reproduction is governed has important implications for children’s rights which need to be taken into account when developing, using and legislating on ARTs. Unregulated surrogacy might, in practice, amount to the sale of children. Meanwhile laws that ban or restrict ARTs might have a negative impact on the legal status of children born out of assisted reproduction, for instance, during birth registration and when establishing their nationality. Restrictive laws may also have implications for the children should they request to access information about their biological origins.
Screening of embryos before implantation, used as part of in-vitro fertilisation, or during gestation, both to identify genetic diseases or disorders, also raises complex bioethical questions and produces friction between groups representing women’s reproductive rights and those representing the rights of persons with disabilities to life and non-discrimination.
There are also questions about whether and in what circumstances children should have a right to access ARTs independently. For instance, if a child’s fertility is expected to be lost or reduced because of medical treatment for another condition, such as chemotherapy in cancer treatment, they should be given the option of freezing their genetic material to be able to found a family later in life. At the same time, lack of regulation could also put children at risk of being exploited for their genetic material.
What is the solution?
CRIN wants to encourage a discussion on the impact of assisted reproduction on the rights of children. In a field that is set to grow and develop rapidly as the 21st century progresses, and with jurisprudence and legislation on the issue still underdeveloped, it offers an opportunity to ensure that children’s rights are built into standards from the outset, avoiding legal advocacy later.
Fundamentally, in every case without exception in the context of assisted reproduction, children’s rights must be recognised alongside those of adults, and their best interests must always be the primary consideration in all matters affecting them.
Discussion paper: A children's rights approach to assisted reproduction - CRIN.
Analysis: Surrogacy, children's rights, and the law - CRIN.
Project: The Parentage / Surrogacy Project - Hague Conference on Private International Law.
Expert meeting: international surrogacy arrangements and the drafting of ‘Principles for a better protection of children’s rights’ - International Social Service.
Policy: Anonymous donation of sperm and oocytes: balancing the rights of parents, donors and children - Council of Europe.
Report: Thematic study on surrogacy and the sale of children - UN expert on the sale and sexual exploitation of children.
Intervention: CRIN’s joint intervention submitted to the European Court of Human Rights on the right of twins born through surrogacy to same-sex parents to inherit their father’s nationality.