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model in many respects, though it is recognised that there are many significant
differences between adoption and surrogacy.25
However, it has been cautioned that even the adoption of a new convention
may not be without drawbacks.26 A new convention will not provide a full solution. On the one hand, it will take time to negotiate and not all States may ratify
it. On the other hand, some cases27 may still fall outside that future framework.28 Furthermore, even if an agreement on private international law rules
were reached, the new convention may contain an ordre public clause allowing
State parties to prevent the application of foreign law or the recognition of a
foreign decision where it would be contrary to its public policy.29
3.2.
Recommendations for Measures to be Taken in the Short-Term
Therefore, while further consideration is given to the most appropriate and
best way to approach the possible drafting and implementation of a new
convention on related issues in the long-term, immediate measures need to be
taken in order to respect the best interests of children concerned.
The framework provided in General Comment No 530 from the Committee
on the Rights of the Child is a useful tool for outlining the general measures
that should be taken to implement the CRC and improve respect for children’s
rights. While such General Comments are not legally binding on States, they
provide authoritative guidance on the interpretation and application of the
Convention. The paragraphs below describe how some key general measures,
such as legislative reform, data collection, co-ordination mechanisms and
25
26
27
28
29
30
HCCH, ‘A Preliminary Report on the Issues arising from International Surrogacy
Arrangements’ (n 6).
Lin, ‘Born Lost’ (n 8).
For example, the cases of same-sex couples may not be covered by the future convention
as this is unlikely to be agreed. The ‘medical visa’ currently required by the Indian
Government is an interesting example of how future regulation may develop and it is
only granted to a foreign man and woman who have been married for at least two years.
See more at: Ministry of Home Affairs - Government of India, ‘Type of visa for foreign
nationals intending to visit India for Commissioning Surrogacy and conditions for
grant visa for the purpose’ <http://mha.nic.in/pdfs/CS-GrntVISA-291112.pdf> accessed
15 September 2013.
Lin, ‘Born Lost’ (n 8).
HCCH, ‘A Preliminary Report on the Issues arising from International Surrogacy
Arrangements’ (n 6), 28.
UN Committee on the Rights of the Child, ‘General comment no. 5: General measures of
implementation of the Convention on the Rights of the Child’ (27 November 2003) UN
Doc CRC/GC/2003/5.
tilburg law review 19 (2014) 117-126