Surrogacy, Identity, Parentage and Childrenʼs Rights – Through the Eyes of a Child

• DOI: http://doi.org/10.1111/fcre.12554
• Author: Judge Alexandra Harland
• Date: 01 January 2021
• Published date: 01 January 2021

SURROGACY, IDENTITY, PARENTAGE AND CHILDRENʼS

RIGHTS –THROUGH THE EYES OF A CHILD

Judge Alexandra Harland

In this article I will focus on two important aspects of children’s rights which are impacted by artif‌icial reproductive technol-

ogy (particularly surrogacy); being the rights to identity and the rights to legal parentage. The United Nations Convention on

the Rights of the Child acknowledges the importance of a child’s right to identity, to be protected from discrimination on the

basis of the status or beliefs of the child’sparents, legal guardians or family members. For many children born through surro-

gacy arrangements, they may have only one or no legally recognized parent. The adults caring for them may have parental

responsibility orders but this falls well short of providing children with the benef‌its and protections that legal parentage does.

The issue of identity can be complex. Increasingly, states have recognized the importance of children knowing the circum-

stances of their birth and being able to access biological and genetic information including medical information. From a chi-

ld’s perspective the issues of identity and parenthood are intertwined. Given the importance of identity, more needs to be

done to ensure that identifying information about children born as a result of artif‌icial reproductive technology is properly

stored and readily accessible for these children. Denying a child legal parentage when there are no concerns about the care

being provided by their parents cannot be justif‌ied when considered from a children’srights perspective.

Practitioner’sKey Points:

The Convention on the Rights of the Child recognizes the importance of the children’s rights to identity and family.

Children born through artif‌icial reproductive technologies including surrogacy are often denied legal parents and the

recognition of their family.

There is a tension between balancing the children’s rights to identity with a donor’s rights to privacy and the accessi-

bility of accurate information.

The concept and recognition of legal parenthood goes beyond legal entitlements and is more expansive than parental

responsibility.

Keywords: Assisted Reproductive Technology; Europe’s to Surrogacy and Child–Parent Relationship; Legal Parenthood;

Legal Recognition of Family;Rights to Identity; Status of Children; Surrogacy.

I. INTRODUCTION

In 2019, the United Nations Convention of the Rights of the Child (CRC) had its thirtieth anni-

versary. In recent years there has been greater discussion and recognition of childrenʼs rights.

1

Arti-

cles 2, 7 and 8 of the CRC are of particular importance to this discussion. Article 2 addresses

protecting children from all forms of discrimination and specif‌ically refers to discrimination on the

basis of birth and national, ethnic or social origins of the child or the childʼs parents, guardians or

family members. Article 7 requires a childʼs birth to be registered immediately after birth; the right

to a name; nationality; a right to know and be cared for by that childʼs parents as far as possible.

Article 8 requires states to protect the childʼs rights to identity, which includes nationality, name

and family relations. The wording of the CRC is clear. It is about the rights of individual children,

not children as a group.

Judge, Federal Circuit Court of Australia. The views expressed in this article are my own and do not ref‌lect the views

of the court.

FAMILY COURT REVIEW, Vol. 59 No. 1, January 2021 121–130, doi: 10.1111/fcre.12554

© 2021 Association of Family and Conciliation Courts