Introduction: Surrogacy Debates in Taiwan and Children’s Rights
In 2024, an outspoken advocate for surrogacy, Chen Chao-tzu (陳昭姿), was elected to Taiwan’s Legislative Yuan (立法院), thereby drawing greater public attention to the issue. Surrogacy is currently illegal in Taiwan and remains a contentious issue. According to a 2025 study on public health policy, the Taiwanese public holds significant concerns about the legalization of surrogacy and its potential social impact on the rights of women and children. Nonetheless, some Taiwanese individuals continue to travel abroad to countries where commercial surrogacy is permitted and have children through such arrangements.
The Hague Conference on Private International Law (HCCH), a leading international private law body, defines a surrogacy arrangement as an agreement made before conception between the prospective surrogate mother and the intended parent(s). Under this agreement, the intended parents will become the legal parents and assume care of the child after birth. An International Surrogacy Arrangement (ISA) refers to a situation in which the intended parents and the surrogate mother maintain different habitual residences, and the child is transferred from the state of birth to the state of the intended parents’ habitual residence. In this context, the surrogate mothers’ rights and welfare of the surrogate children are central to the debates on international surrogacy.
This article explores the rights of surrogate mothers and children. A UNICEF and Child Identity Protection briefing note on safeguarding children’s surrogacy rights posits that regardless of the states’ legal position on surrogacy, children born through surrogacy should enjoy the same rights as non-surrogate children, without discrimination. In disputes over guidelines for protecting children, surrogate mothers’ rights are a common concern. This article argues that any surrogacy policy should include thorough discussion of the rights of surrogate mothers and the social impacts of surrogacy.
Surrogacy: Technology and Commercialism
Having children has always been a fundamental aspect of human life. As such, reproduction, and particularly surrogacy, continues to be a source of debates and ethical concerns in Taiwan and worldwide. Two major debates surrounding surrogacy involve reproductive technology, and the contrast between commercial and altruistic surrogacy.
Advances in technology have significantly transformed both reproduction and surrogacy. For instance, the development of assisted reproductive technology has been closely linked to the evolution of surrogacy. This is evident in the shift from traditional to gestational surrogacy. Traditional surrogacy involves a surrogate mother who provides her own eggs, making her the biological mother. However, since the 1990s, gestational surrogacy (where the intended mother or another woman provides the fertilized eggs for the surrogate) has become the mainstream model. By separating the surrogate from biological motherhood, many believe that gestational surrogacy helps to ease ethical concerns and makes the practice more socially acceptable. Still, technological advances have not resolved the ethical debates, such as concerns around the exploitation of disadvantaged women as surrogate mothers.
Debates also focus on different types of surrogacy, namely, altruistic and commercial. There are increasing doubts about whether this binary distinction is always clear-cut. As note: “payment and altruism do not have to be mutually exclusive.” This article adopts the definition of commercial surrogacy used by the UN Special Rapporteur on the sale and sexual exploitation of children, which follows the HCCH: commercial surrogacy includes not only direct payments but also “reimbursements” that go beyond reasonable and itemized expenses directly resulting from the surrogacy arrangement. Some states only allow altruistic surrogacy (usually with strict regulations), such as the United Kingdom, which restricts surrogacy to people with UK permanent residency. In comparison, other states with commercial surrogacy may allow more accessible regulations for intended parents. These accessible international commercial surrogacy arrangements are seen as the solution for many people who live in a state that does not allow surrogacy or that maintains strict surrogacy restrictions, such as Taiwan.
International Surrogacy Arrangements
Since surrogacy is illegal in Taiwan, Taiwanese parents interested in surrogacy have to turn to surrogate mothers from other countries, participating in an international surrogacy arrangement (ISA). Across European countries, legal positions on surrogacy vary greatly, demonstrating that diverse approaches to surrogacy are common in the international community today. By introducing cases from the European Court of Human Rights (ECtHR), this section sheds light on how international courts may approach surrogacy in situations involving both jurisdictions where surrogacy is legal (such as in some US states), and jurisdictions where it is prohibited–like in Taiwan.
An ISA involves parties from different countries, often resulting in conflicts of law due to the diversity of legal systems. Countries worldwide take varied approaches to surrogacy. Even among those that prohibit it, the treatments of ISAs are not consistent. For example, many countries, including France, Spain, Germany, and Switzerland, consider surrogacy illegal. Others, like Ireland, Belgium, and the Czech Republic, have no specific legislation on the matter. The absence of regulation can create legal uncertainty. In such jurisdictions, surrogacy contracts may not be enforceable, and surrogate mothers are typically considered the child’s legal guardian, even if they are not the biological mother. If the surrogate has a spouse, that person may also be recognized as a legal parent. Some states, such as the United Kingdom and Portugal, permit altruistic but not commercial surrogacy. In Portugal, surrogacy is also limited to heterosexual couples with a qualifying medical reason.
Cases before the European Court of Human Rights demonstrate that the court assesses parental rights and children’s best interests based on the specific legal and factual context. In Paradiso and Campanelli v. Italy (2017), Italian authorities refused to recognize the parentage or register the birth certificate of a surrogate child because its intended parents were not the biological ones. The nine-month-old child was subsequently removed and placed in social care. The Grand Chamber of the ECtHR held that there was no violation of Article 8 of the European Convention on Human Rights (ECHR), regarding respect for private life. By contrast, in C and E v. France (2019), the French authorities required the intended mother to complete a second-parent adoption process for a surrogate child, despite the fact that the intended father was the biological parent of the child. The EctHR considered that the French authorities’ requirement was proportionate, noting the average adoption process in France took only four months. Therefore, the court deemed the parents’ application alleging a violation of ECHR Article 8 to be ill-founded and declared it to be inadmissible.
Another related case, K.K. and Others v. Denmark (2022), concerned Danish authorities’ refusal to allow the intended mother to adopt twins born through commercial surrogacy in Ukraine. The children were living with their biological father, who was also the intended mother’s partner. The court concluded that the Danish authorities acted within a reasonable public interest in restricting commercial surrogacy, which outweighed the intended mother’s private life claim based on Article 8. However, the Court found a violation of the children’s Article 8 rights. It ruled that Danish authorities failed to appropriately balance the children’s interests, including their legal status and relationship with the intended mother, against societal concerns regarding commercial surrogacy.
In summary, these cases illustrate how the ECtHR navigates between jurisdictions that allow surrogacy and those that prohibit it. Biological ties often serve as a decisive factor in establishing legal parentage. Where authorities deny legal parentage and children’s rights are not compromised, the court tends to defer to national authorities. However, the ECtHR does not apply a fully consistent standard in surrogacy cases. It generally respects states’ policy discretion on surrogacy and their definitions of public interest, yet it places particular weight on the child’s best interests—a concept that remains open to interpretation and can be applied variably across contexts.
Surrogate children’s interests can be defined in several different legal ways. The UN Special Rapporteur’s report on safeguards for the protection of the rights of children born from surrogacy arrangements, as well as the principles for the protection of the rights of the child born through surrogacy (Verona Principles), stress the importance of protecting children’s dignity, non-discrimination, and other fundamental rights throughout the entire surrogacy process. They highlight that children’s rights can be seriously violated in unregulated or poorly regulated surrogacy arrangements, especially in cross-border contexts. According to the aforementioned UNICEF and Child Identity Protection briefing note, while current international human rights law does not provide safeguards in terms of domestic surrogacy or ISAs, it defines the right to identity to include “name, nationality, family relations and access to origins; the right to the enjoyment of the highest attainable standard of health; and the right to not be sold.”
This guideline critically identifies the identity rights as well as the citizenship of the child, and influences the HCCH’s discussion on ISAs. It is worth noting that although there are calls for screening procedures for surrogacy on ISAs, these guidelines and principles should not be seen as an endorsement of surrogacy. Rather, they respond to the high risk of violation of human rights through surrogacy procedures. Given the potential risks, these guidelines posit that there should be safeguards for children’s rights, including the right to identity. These guidelines have been considered by the HCCH in the discussion regarding a harmonization of different legal systems.
Surrogacy Across Borders: US Practices, Taiwanese Parents, and Legal Challenges
Taiwanese intended parents seeking to engage in international surrogacy arrangements (ISAs) may turn to the United States. In the United States, surrogacy laws vary significantly across states, as there is no federal legislation governing the matter. Even in states where surrogacy is permitted, different restrictions apply. For instance, Michigan requires that at least one party in the arrangement be a resident of the state. In Virginia, pre-birth parentage orders are generally not granted. Meanwhile, in California there is no residency requirement and pre-birth parentage orders are allowed. States like California are therefore particularly popular among international intended parents, including those from Taiwan.
When it comes to the child’s legal status, nationality becomes an issue alongside parentage. Following an ISA, the child is usually brought to the intended parents’ country—in this example, to Taiwan. Children born in the United States acquire US citizenship at birth, regardless of whether or not pre-birth parentage orders have been issued. Under Taiwan’s Nationality Act, Taiwanese nationality can be passed on by a parent to a (surrogate-born) child. This means the surrogate child may acquire Taiwanese citizenship. The procedure requires the presentation of the birth certificate, documentation transferring parental rights, and a US passport, followed by the issuance of a permanent resident certificate and entry into the household registration system. However, if the intended parent is unmarried, they will first need to legally establish the parental responsibility and register the child in the household registration system, as the law requires the parent to obtain parental responsibility in the case of a child born out of wedlock.
Several legal and ethical concerns arise from ISAs in the context of Taiwan. First, as seen in the ECtHR cases covered above, biological connections are usually considered essential for establishing parentage in these cross-border surrogacy cases. In these European cases, similar emphasis is placed on biological ties in determining parental rights. In Taiwan, however, there is no statutory requirement for a biological connection between the surrogate child and the intended parents due to the legal vacuum. This raises the question of how surrogacy differs from adoption—especially given that, unlike adoption, surrogacy does not require a rigorous assessment of the intended parents’ caregiving capacity or home environment.
Second, the legal and ethical concerns extend beyond parentage. If the United States were ever to amend its birthright citizenship laws—however unlikely that prospect may seem—the legal status of surrogate children could become precarious. Would they be rendered stateless? Moreover, current commercial surrogacy practices may conflict with children’s fundamental rights. Specifically, commercial surrogacy practices could compromise children’s rights to identity, knowledge of their origins, and protection from being treated as commodities. In other words, commercial surrogacy risks reducing children to the status of products under a contractual arrangement, and may thus infringe on their intrinsic rights to identity. Taiwan’s current legal framework for ISAs therefore may be insufficient to safeguard both the legal and ethical interests of the children involved.
Third, the rights and agency of surrogate mothers, and the associated shift of parental responsibility, are equally crucial. Pre-birth parentage orders, while often favored by intended parents, can undermine the surrogate’s legal and ethical protections. International guidelines, including those of the UN Special Rapporteur’s report on safeguards for the protection of the rights of children born from surrogacy arrangements, recommend measures to prevent the commodification of children. These include either prohibiting commercial surrogacy in the absence of strict regulation; or ensuring that the surrogate retains legal parentage at birth, that payments are made prior to any child transfer and remain non-refundable except in cases of fraud, and that contracts cannot override the surrogate’s health, autonomy, or freedom. Such protective recommendations highlight how current practices–particularly pre-birth parentage orders–may undermine surrogate mothers’ rights and raise ethical questions around the commodification of both women and children.
Conclusion
In Taiwan, the absence of specific surrogacy regulation creates a legal vacuum that may require future judicial interpretation. International guidelines and relevant case studies could offer valuable direction in safeguarding the rights of children, surrogate mothers, and all parties involved. The HCCH’s Final Report: The Feasibility of One or More Private International Law Instruments on Legal Parentage explores the development of protocols on legal parentage from ISAs, aligning them with other forms of parentage such as adoption. Although surrogacy raises distinct legal and ethical questions, the report underscores the need to ensure that surrogacy meets the standards applied to other parentage arrangements. In Taiwan’s context, courts may look not only to emerging international standards, but also to domestic principles that reflect local understandings of family, parentage, and child welfare. Greater public discussion is also needed to bring visibility to the concerns surrounding surrogacy, including ethical safeguards, legal uncertainties, and the interests of all those affected.
Surrogacy inevitably raises concerns around commodification—of surrogate bodies or egg donors, and of the potential sale of children. Drawing a clear ethical line is challenging. As shown by case studies from Europe and differing legal frameworks across US states, societies vary in how they approach this complex issue. Ultimately, the decision whether to legalize surrogacy must be accompanied by careful reflection on a society’s values. Even without the legalization of surrogacy, clear, enforceable safeguards for both children and individuals acting as surrogates are needed.
The main point: Surrogacy remains a deeply contested human rights issue, one that demands careful value judgements from both authorities and society. Although surrogacy is currently illegal in Taiwan, some Taiwanese individuals pursue international surrogacy arrangements (ISAs), particularly in countries like the United States where commercial surrogacy is permitted. In the absence of domestic legislation, the Taiwanese judiciary should be called upon to address legal uncertainties related to ISAs, even without fully legalizing the process. In doing so, it would be prudent to consider not only international standards and comparative cases but also the values and ethical priorities of Taiwanese society.
