INTRODUCTION

Truth commissions are temporary bodies that aim to disclose the truth about past human rights violations. Drawing on Hayner's widely used definition, truth commissions are created to investigate patterns of human rights abuses over a period of time, to engage directly and broadly with the affected population and to issue a final report recommending reparations programmes and institutional reforms to ensure such abuses do not reoccur.

These bodies have been used in more than 30 countries since the fall of the military regime in Argentina in 1983. From an historical perspective, the first generation of truth commissions included those established in the Southern Cone of Latin America. Despite the limitations of the initial commissions, these represented the baseline and were a source of inspiration for later truth commissions. Since then, ‘truth commissions have become a staple of postconflict or post-authoritarian transitions across numerous and diverse contexts’.

Truth commissions have changed considerably since their early establishment and they are no longer regarded as ‘quick-fix’ solutions to overcome complex transitions or as a substitute for criminal justice. These bodies have developed significantly over the past three decades, expanding their mandates and objectives and becomingly increasingly innovative in their processes, thus forming very sophisticated and complex enterprises. Therefore, a large amount of literature has been written on the supposed benefits of truth commissions claiming that they provide victims with an opportunity to tell their story, promote accountability and the rule of law, produce an authoritative account of state crimes, recommend institutional reforms, and promote reconciliation. Since truth commissions in the last two decades have become increasingly popular mechanisms for dealing with the past, the trend in recent research has been towards evaluating the impact and merit of these bodies. One of the most active debates in the research on transitional justice is focused on the problem of how to assess the impact and effectiveness of truth commissions and other transitional justice mechanisms. While there has been some attempt made to identify common guidelines in order to evaluate the effectiveness and efficacy of such bodies, the results of the first empirical studies, both qualitative and quantitative, have so far produced mixed and sometimes contradictory results.

GENERAL LEGAL FRAMEWORK

The first assisted reproductive technologies (‘ART’) regulation in Spain was Act 35/1988 of 22 November (BOE no. 282, 24 November 1988). This was followed some years later by Act 14/2006 of 26 May on assisted human reproductive technologies (BOE no. 126, 27 May 2006), which persisted in denying surrogacy arrangements any legal effects. Article 10.1 declared commercial or altruistic gestational surrogacy arrangements ‘fully null and void’, and thus these arrangements have typically been considered to be contracts with unlawful purpose (Arts 1271 and 1275 of the Spanish Civil Code). The main consequence of the nullity is that any child's legal mother is the woman who gave birth to it (Art. 10.2 of Act 14/2006), in accordance with the Roman law principle mater semper certa est.

Spain has become one of the top ‘fertility tourism’ destinations for couples and single women from other European countries. Factors such as permission to use third-party gametes; ‘compensation’ policies fostering gamete surplus; donor anonymity; non-exclusion of unmarried and lesbian couples; and – in the private sector – lower costs and shorter waiting lists compared to other Member States which also have liberal ART regulations all go some way to explaining this phenomenon. However, Spanish citizens themselves need to leave Spain and visit other legal systems when matters of surrogacy are concerned. Popular destinations so far have been – in this order – the United States (US), Ukraine, India, Mexico and Thailand. Although providing official data on a reality which takes place outside the control of the law is extremely difficult, there is some evidence which leads to the conclusion that cross-border surrogacy is an ever-increasing phenomenon in Spain, often encouraged by private agencies and intermediaries. It is estimated that around 1,000 children with Spanish commissioning parents were allegedly gestated in this way and born in the US in 2003. According to data from the Spanish Consulate in Los Angeles, the birth rate among Spanish nationals resident in this consular territory in 2008 was 50.01 per 1,000 residents, which is five times higher than that among Spanish nationals residing in Spain that same year (9.8 per 1,000). This rate can only be explained because the Consulate has allowed for the registration of sons and daughters of non-residing couples of different sex.

GENERAL LEGAL FRAMEWORK

BAN ON SURROGACY IN ICELAND

Popular Icelandic folklore has numerous stories of women bearing children and giving them to others to raise, undoubtedly for different reasons and under various circumstances. The emergence and development of the science of human biology, reproduction and genetics has steadily increased the focus on how and to what extent reproductive technologies should be used to help persons desiring to create a family.

The use of artificial technologies in Iceland has been growing steadily for the last decades. Though a general legal framework was lacking, procedures using artificial insemination started in 1980 and in vitro fertilisation in 1991. The Act on Children from 1992 incorporated articles on paternity for children born through the use of artificial fertilisation. In 1996 Iceland passed the Act no. 55/1997 on Artificial Fertilisation and use of Human Gametes and Embryos for Stem-Cell Research. This Act sets out certain criteria for the use of different reproductive technologies, for example opened up the possibility of egg donation. The Act also marks the first formal discussion on whether or not to allow for the use of surrogacy in Iceland.

According to Art. 5 of the Act on Artificial Fertilisation, surrogacy is prohibited in Iceland. The Act defines surrogacy as ‘artificial fertilisation performed on a woman who intends to carry a child for another woman, and has agreed before the pregnancy to give up the child immediately after the birth.’ The preparatory comments on the issue of surrogacy were brief, first and foremost underlining that various ethical issues surround the question of allowing surrogacy. The preparatory comments specifically mention the issue of the maternity of the child, particularly after the use of egg donation, and emphasise the mater semper certa est (mater est) principle as the most widely acknowledged. The minority of the Parliamentary Standing Committee dealing with the Bill in 1995 issued a separate opinion agreeing with the majority on the ban on surrogacy while emphasising that surrogacy raised very many ethical and legal questions and particularly stated the view that commercial surrogacy was the worst form of female repression possible.

In 2010, the Hong Kong public was shocked by media reports of Peter Lee, son of renowned tycoon Lee Shau Kee, and the triplets born to him in the United States through a surrogate mother. Surrogacy was catapulted to the forefront of public discussion. The particular controversy surrounding Peter Lee's triplets was due to multiple factors. For example, there was the fact that Peter Lee was a single father and that the triplets would thus grow up motherless, 1 as well as speculation that he had undergone sex selection to ensure that the triplets would be sons. 2 Given that the triplets had been born pursuant to a commercial surrogacy arrangement in the United States, there was also a question as to whether Peter Lee may have contravened any prohibition contained in the relevant legislation and committed an offence (discussed further below).

The following chapter aims to provide an overview of the regulation of surrogacy in Hong Kong. It begins with the general legal framework, tracing the historical development of the relevant legislation and then setting out its main provisions and prohibitions in relation to surrogacy. This is followed by an examination of the Council on Human Reproductive Technology and the Code of Practice it publishes, together with the eligibility requirements contained within. The latter half examines parenthood in Hong Kong and how it is transferred for the purposes of surrogacy arrangements.

GENERAL LEGAL FRAMEWORK

The legal framework for surrogacy in Hong Kong is largely contained within the Human Reproductive Technology Ordinance (Cap. 561) (‘HRTO’).

HISTORY OF THE HUMAN REPRODUCTIVE TECHNOLOGY ORDINANCE

Background

The historical development of the HRTO can be traced back to the 1980s. The first donor insemination service in Hong Kong was established in 1981, which led to the birth of the first baby conceived using in vitro fertilisation (‘IVF’) technology in 1986. 3 In response to these developments, the Secretary for Health and Welfare at the time set up a multidisciplinary Committee on Scientifically Assisted Human Reproduction in 1987.

GENERAL LEGAL FRAMEWORK

Thailand was a favourite target for international surrogacy arrangements as the country is famous for the quality of its healthcare facilities and personnel. These arrangements tend to avoid the limelight and are low key. However, in recent years there have been a number of very high-profile cases where these arrangements were burst out in the open, creating international uproars which led to the country introducing new legislation designed to stamp out unregulated, commercial surrogacy once and for all. Perhaps the most famous of these high profile cases is the Baby Gammy case. In July 2014, a news story broke where a Thai surrogate mother, Pattaramon Janbua, sought an amount of money to help her critically ill surrogate son, Gammy, who was born with Down syndrome. The baby boy was a twin brother of a baby girl, Pipah, who had already been taken away to Australia by a commissioning Australian couple, who had previously contacted Janbua through agents to act as their surrogate mother. The surrogacy arrangements were done in Thailand and Janbua gave birth to the twins in December 2013. However, during her pregnancy it was discovered that Janbua was carrying twins and one of them, Gammy, had Down syndrome, and also congenital heart and lung disorders. The agency that ran the surrogacy requested that Janbua allow an abortion of the defective foetus, which she refused. The news story caused a huge amount of uproar not only in Thailand but also throughout the world. According to Janbua the commissioning couple took away only the healthy twin girl and left Gammy in Thailand. Janbua became attached to Gammy and tried to raise him along with her own children. However, the cost of raising Gammy became too much for her and soon afterwards the story was publicised in the international media. However, the Australian commissioning couple initially claimed that they did not know about the existence of Gammy because the truth was hidden from them by the agency. Later they conceded that they had known about Gammy's existence at the earliest stage.

GENERAL LEGAL FRAMEWORK

Steps to regulate surrogacy in South Africa predate the advent of democracy. In 1987, in a much publicised case, Karen Ferreira Jorge gave birth to triplets, born of the gametes of her daughter (she was the gestational mother and the biological grandmother). At the time there was no legal regulation for this unprecedented state of events, leading to a project committee of the South African Law Commission (now the South African Law Reform Commission (hereafter ‘SALRC’) being appointed to investigate the issue. Although this Committee had completed its work in the 1990s, there was no further legislative action (notwithstanding a post-1994 Ad Hoc Parliamentary Committee being convened to conduct public hearings on surrogacy) to finalise new laws. Ultimately surrogacy was added as a final chapter to the Children ‘s Act 38 of 2005, which came fully into force in April 2010. The project committee which had deliberated upon the development of the omnibus Children’ s Act had not considered surrogacy during its lifespan, so the impetus to add surrogacy to the Children ‘s Act came from within the SALRC. The initial work of the SALRC has survived, and many of the current provisions can be traced to the original report. The location of regulations on surrogacy within the overarching tenets of the Children’ s Act has, however, shaped the current interpretation of the provisions, as will be shown below. By way of a preliminary point, the Act allows only altruistic surrogacy: commercial surrogacy is barred.

South Africa stands out for its progressive constitution, with two particular clauses worthy of discussion. First, s. 28 provides a mini charter of children ‘s rights, including the injunction that the best interests of the child are of paramount concern in all matters affecting the child. As a justiciable constitutional right, the best interests provision has provided an important standard which has at times been overriding. Second, South Africa’ s equality clause (s. 9) prohibits discrimination on a wide range of bases, including gender, marital status and sexual orientation. All have proved to be relevant in the context of surrogacy, which is equally available to hetero and same-sex couples.

AN OVERVIEW OF SURROGACY ACROSS THE UNITED STATES

INTRODUCTION

In the United States, the law of surrogacy reflects a combination of state law, with the majority of states having adopted no direct legislation or definitive appellate precedents; and private law, with contracts of uncertain enforceability shaping the courts ‘and the parties’ expectations about the outcomes in the event of a dispute. While this creates substantial uncertainty about surrogacy law, the states that enjoy the most robust surrogacy practices do have comprehensive legal standards, and jurisdiction shopping within the United States is relatively easy to do. In addition, established commercial agencies, which draft standardised contracts, develop practices that set industry norms. As a result, American surrogacy law is more robust than a review of statutes and reported decisions might suggest.

Surrogacy law in the United States has developed in the context of a federal system, which entrusts family law, the licensing of medical professionals, and private contract law to the individual states. At the federal level, Congress has some power to address surrogacy on a national basis, but it has not chosen to exercise it. The states are therefore free to adopt their own approaches to the legality of surrogacy and to the determination of the children ‘s parents. In the majority of the states that lack explicit statutes on surrogacy, however, many courts have yet to address surrogacy at all or have done so only in decisions that do not constitute binding precedent. Complicating matters further, commissioning parents who live in a jurisdiction that prohibits surrogacy may contract with a surrogate in another state where such contracts are enforceable, and the determination of parentage may then depend on the child’ s residence at the time of the order (typically the state where the surrogate gives birth). The US Constitution then requires that other states accord ‘full faith and credit’ to the parentage judgments. The states are similarly free to regulate international surrogacy arrangements on whatever terms they choose; the fact that the commissioning parents come from outside the United States does not affect state power to determine parentage or the validity of contracts.

Korea has a traditional culture that highly values the patriarchal bloodline and emphasises the family relationship. Thus, an infertile couple often has a strong desire to establish a family with their own child. As the number of infertile people and availability of artificial reproductive technology is increasing, the number of surrogate arrangements presumably is high, but no official statistical data is available.

In South Korea, there are no statutes or laws on surrogacy. Because of the culture that emphasises blood relations, it is the surrogate mother who goes to the medical institution in the name of the commissioning mother to enter the family registration as a child of the commissioning mother. In the absence of legal regulation of surrogacy, the problems raised from surrogacy contracts must be solved by the application and interpretation of the general law. Until recently, the prevailing opinion among legal scholars was that such contracts would be void. But as artificial reproductive technology including the surrogate arrangement are used more widely, calls for specific legislation on surrogacy get more support from legal scholars as well as the general public.

GENERAL LEGAL FRAMEWORK

In South Korea, neither statutes nor regulations address surrogacy despite the increasing practice of surrogacy, as revealed by the South Korean news reports and broadcasting media. Given that there are not even legal cases at courts generally, nor any decisions made on surrogacy by the Supreme Court, surrogacy contracts are neither illegal nor regarded as legal. Traditionally the bloodline of a family is of paramount importance in South Korea, and the commissioning parents generally hide the history of the child born to a surrogate by registering the baby as if born to the commissioning mother. Although not addressing surrogacy expressly, the Bioethics and Safety Act (in force since January 2005) indirectly affected surrogacy by regulating IVF clinics (on which see below Section 1.1.). Several bills have been proposed to regulate surrogacy in South Korea, but all were aborted (on which see below Section 1.2.). Meanwhile the South Korean Society of Obstetrics and Gynaecology issued Ethical Guidelines on Assisted Reproduction in January 2011, but they are nonbinding and not enforceable.

Any rational consideration of surrogacy is bound to be inadequate. The desire to parent has a deep emotional, not to say emotive, component and lawyers and legislators ignore that at their peril. Rationality, however, remains necessary, for the closing words of the Book of Judges in the Hebrew Scriptures – ‘In those days Israel had no King and every man did what was right in his own eyes’ – describe not utopia but anarchy. What is required is a judicious blend of rationality and human empathy.

This becomes the more so where the subject matter of our consideration is both complex and morally controversial as well as emotive. It means that every judgment is value-laden and not only may those values be controversial, there will be more than one value system in play at any one time. So we will have to take into account the values of the society in which we are engaged as well as the values of the particular parties involved. Moreover, we have to recognise that in any value-laden discretionary decision, account must also be taken of the values of the individual trial judge. I suspect that, even amongst the small group of judges in England and Wales who do this work, there will be a wide range of personal values. Were you to read any judgment of mine, you may or may not be able to detect my own value system but it will nevertheless have played a part in any discretionary decision. It will be clear then that these different value systems may not all pull in the same direction. It should not therefore surprise us if we encounter difficulties in this area of law.

The usual (but not the only) expression of surrogacy is the fertilisation of a donated egg, using the sperm of a commissioning parent, which is then implanted in the surrogate who gives birth in due course. The requirement in English law is provided as follows:

INTRODUCTION

One of the most theoretically neglected and empirically under-researched, yet potentially one of the most important, legacies of truth commissions are their recommendations. As discussed elsewhere in this volume, truth commissions have become a significant means of confronting human rights abuses committed by the military, state agents, paramilitaries or opposition forces during repressive regimes or periods of armed conflict. The prime function of a truth commission is to investigate and document human rights violations, and to make its findings public through a report. Another central function of truth commissions is to make recommendations to the government with two main aims: to address violations of the past and to prevent such violations from reoccurring in the future.

There are between 50 and 70 truth commissions in existence worldwide – depending on the criteria one uses to define the universe of truth commissions. The South African Truth and Reconciliation Commission is arguably the world's best known, and the one that has received the most scholarly attention. However, the model of a truth commission was developed and perfected in Latin America. As of 2018, this region has had 13 official (that is, state-endorsed) truth commissions in 11 different countries that have completed their work since the early 1980s. Adding the two official commissions that never published a report and various non-official truth commissions, there have been a total of more than 20 truth commission efforts in Latin America. Widely known commissions include Argentina's National Commission on the Disappeared (CONADEP), Chile's National Commission on Truth and Reconciliation (Rettig Commission), and Peru's Truth and Reconciliation Commission. Lesser known truth commissions include those of Ecuador, Haiti, Panama and Paraguay. A latecomer on the truth commission scene in Latin America is Brazil – which published its final report almost three decades after the country's transition from military dictatorship to democracy in 1985, in response to a presidential initiative. Truth commissions have recently also been established in Colombia and Bolivia, suggesting that this form of documenting human rights violations is far from passé in the region.