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a nationality. In particular, it follows from the CRC and the best interests principle that a child must not be left stateless for an extended period of time and,
therefore, must acquire nationality at birth or as soon as possible after birth.3
Despite this, children often face barriers in obtaining a nationality and statelessness persists, not only in the developing world, but around the globe.4
The main causes of statelessness have been linked to problems caused by
State succession, discrimination and arbitrary denial or deprivation of nationality as well as technical causes.5 This last category may include cases where
there are conflicts between the nationality laws of different States or between
other administrative or legal measures that may impact on the application of
nationality laws. For example, in many countries, birth registration and recognition of legal parentage are prerequisites to establishing the nationality of a
child. Indeed, it has been argued that legal parentage is ‘the gateway through
which many of the rights of children, and obligations to children, flow’.6 This
gateway to nationality and realisation of rights may be effectively blocked in
cases of international surrogacy.
2
The Challenge and Complexity of International Surrogacy
Advances in reproductive technology and increasingly varied forms of
family households,7 along with the ease of modern communications and
2 Convention on the Rights of the Child (adopted 20 November, entered into force 2 September
1990) UNGA Res 44/25 (CRC) art 7.
3 UN High Commissioner for Refugees (UNHCR) ‘Guidelines on Statelessness No. 4: Ensuring
Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on
the Reduction of Statelessness’ (21 December 2012) HCR/GS/12/04 <http://www.refworld
.org/docid/50d460c72.html> accessed 16 September 2013, para 11.
4 UNHCR ‘Mapping Statelessness in the Netherlands’ (November 2011) <http://www.refworld
.org/docid/4eef65da2.html> accessed 15 September 2013. This UNHCR mapping study
emphasized that statelessness “is not confined to the developing world or distant countries;
all across the globe there are people who live or survive without the elementary benefits of a
nationality”.
5 UNHCR, Nationality and Statelessness: A Handbook for Parliamentarians (20 October 2005)
<http://www.refworld.org/docid/436608b24.html> accessed 15 September 2013.
6 Permanent Bureau of Hague Conference on Private International Law (HCCH), ‘Private
International Law Issues Surrounding the Status of Children, including Issues arising from
International Surrogacy Arrangements’ (2011) Preliminary Document No 11, 4; HCCH,
‘A Preliminary Report on the Issues arising from International Surrogacy Arrangements’
(2012) Preliminary Document No 10, 20.
7 HCCH, ‘Private International Law Issues Surrounding the Status of Children, including Issues
arising from International Surrogacy Arrangements’ (n 6).
tilburg law review 19 (2014) 117-126