Friday 6. December 2019
#165 - November

 

One child and... actually how many parents did you say?

 

Surrogate motherhood is an emergent ethical and legal issue at both international and EU levels.

 

A “Comparative study on the regime of surrogacy in EU Member States”, commissioned by the Committee of Legal Affairs, has recently been presented at the European Parliament; whereas, at the same time, it has been announced that rising ‘surrogacy tourism’ in India is boosting an already four-billion dollar industry in that country. A sign of the times!

 

 

Surrogate motherhood is the practice whereby a woman (the surrogate mother) becomes pregnant with the intention of handing over the child to someone else (the intended parent) after the birth. A distinction is made between traditional and gestational surrogacy depending on whether the surrogate mother´s eggs are used or not. In the first case, the surrogate is also the genetic mother of the child. In the second case, the intended parent may or may not be also the genetic parent of the child, depending on whether a third person’s gametes were used or not (with regard to the donation of gametes, the so-called heterologous in vitro fertilization, see our article in europeinfos issue no. 146). Finally, with new techniques such as pronuclear transfer, even the “genetic material” might, at least in theory, originate from more than one donor.

 

Lost count? Indeed, too many “parents” for just one child, let alone mentioning a possible husband or partner of the surrogate mother herself!

 

Ethical and legal concerns

These assisted reproductive technologies – as a matter of fact, actual reproductive technologic revolutions – pose, of course, enormous ethical and legal questions and difficulties. To complicate things even more, surrogacy may be “commercial” or “altruistic”, and the surrogate mother and the intended parents may be from different countries (“cross-border surrogacy”), with different applicable legislations, often with one of them prohibiting (or simply not recognizing) the surrogacy arrangement – and therefore the corresponding foreign birth certificate – with possible, dire dramas of ‘parentlessness’ and ‘statelessness’ being created, often with the foreknowledge of the intended parents!

 

All this is pursued in the name of granting the ‘enjoyment’ of an alleged “right to a child” by anyone, at the expense of the disruption of marriage, motherhood and parenthood, and indeed family relationships in general. The human dignity of all parties, above all the surrogate mother and the child to born, is violated inasmuch as they are treated as mere objects or commodities; and, in the case of the child to born in particular, his or her very right to personal identity is also breached.

 

No wonder that surrogacy experiences a rather negative attitude from the point of view of the general public, despite the fact that some specific groups, such as the LGBTI (Lesbian, gay, bisexual, transgender and intersex) community and activists, are particularly interested in its legalization and facilitation. Nonetheless, only Greece, in the EU, has a comprehensive legal framework allowing ex ante (before birth) “altruistic” gestational surrogacy, yet with access limited to heterosexual couples or single women and, in either case, depending on “medical necessity”.

 

The way ahead

Notwithstanding, the aforementioned “Comparative study…” claims a lack of European consensus, indicating that the safeguarding of the best interests of the child is possibly the only common recognizable trend among Member States.

The “Comparative study…” also analyses the potential for regulation of surrogacy at the EU level, and possible legal grounds for it: Article 56 (services) and Article 168 (public health) of the Treaty on the Functioning of the European Union (TFEU) enshrining the freedom of movement of patients; Articles 20 and 21 TFEU guaranteeing the freedom of movement of citizens and European citizenship; and Article 19 TFEU, on non-discrimination, among others.

 

Meanwhile, two cases are pending at the European Court of Justice (Cases C-167/12 and C-363/12) and three more at the European Court of Human Rights (Sylvie Mennesson and other v. France, Francis Labassee and others v. France and Paradiso and Campanelli v. Italy), chiefly linked to Article 8 (right to respect for private and family life) or Article 14(prohibition of discrimination) of the European Convention on Human Rights.

 

In any case, given not least the complexity of the issue and the recognized limited competence of the EU regarding family law, the “Comparative study…”  suggests that a global approach would be the most desirable in governing this matter, and it even makes a proposal modelled on the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), for regulating cross-border surrogacy.

Definitely an issue of the highest ethical and legal importance to be followed closely in the near future!

 

 

José Ramos-Ascensão

COMECE

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