Surrogacy, human dignity and the best interests of the child
The Strasbourg Court made judgements in what is increasingly becoming an ethical, judicial and political issue across Europe.
“I knew you before I formed you in your mother’s womb” (Jeremiah, 1:5). The prophet would feel rather confused nowadays had he come across surrogacy, a 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.
In the EU, only Greece and the United Kingdom have explicitly legalized surrogacy. However, in about half the EU Member States, diverse judicial arrangements may enable an eventual recognition or establishment of filiation to the ‘intended parents’ in the case where surrogacy procedures take place abroad.
What is evident now is that surrogacy is booming, fueling a multibillion-dollar industry, mostly in some less-developed countries. Lawsuits are popping up everywhere.
‘Fertility clinics’ practicing ‘surrogacy’ are also flourishing in some states of the US. The European Court of Human Rights (ECHR) had now to decide upon the grave and intricate legal consequences of two of such cases (Menneson v. France and Labassee v. France) involving children born in the US with French ‘intended parents’ to whom filiation ties have been established according to the US law.
France, one of EU Member States which prohibit surrogacy in its legislation, also does not recognize foreign birth certificates where the ‘intended parents’ appear as the ‘legal parents’.
In the present rulings, first of all, and without taking any explicit position with regard to whether surrogacy is compatible or not with human dignity (but implicitly conceding that it is), the Court of Strasbourg considered that there is a wide margin of appreciation for the Contracting States with regard to whether to allow or not surrogacy in their internal legislation and also whether to recognize or not the filiation established according to a foreign legislation.
Secondly, the Court considered that filiation is an element of the identity of any person, affirming its protection under Article 8 (‘right to respect for private and family life’) of the European Convention on Human Rights. Finally, the exclusion by France of any possibility – even through the acknowledgement of paternity or the adoption procedures – for recognising or establishing the filiation, according to the ECHR, has violated that right of the children born through surrogacy, owing specially to the fact that, in both cases, the ‘intended fathers’ were at the same time their ‘biological fathers’ too.
No matter whether the behaviour of the ‘intended parents’ consisted or not of an attempt to fraudulently avoid the application of French law (‘fraus legis’) and no matter the fact that the filiation of the children is unquestionably established in the light of American law: a disturbance persists regarding the identity of the children within French society as, according to the Court, it is uncertain the effects this refusal to recognize or to establish the filiation in France might produce with regard to the recognition of French nationality or the right of these children to inherit in France.
Conclusively, from the ECHR perspective, the State’s obligation to provide for the possibility of recognizing or establishing the filiation in France is deemed a just balance between its legitimate aim of discouraging the resort to surrogacy abroad and the best interests of the children.
Issues to be clarified
These rulings pose at least two major questions. First of all, it is not clear how relevant to their outcome was the fact that the ‘intended fathers’ were also the ‘biological fathers’ of the children. Secondly, it is not easy to draw a clear conclusion on whether these rulings aren’t simply undermining any effective margin of appreciation of the Contracting States as, in practice, no matter their domestic law, it has now been assured that there will always be a possibility available to contravene it. The conclusion would be negative, should a judicial procedure such as adoption not be perverted or distorted; the judgment on a similar, pending case, the Paradiso and Campanelli v. Italy, will most likely shed some light on this.
In any case, what seems now certain and rather consensual is the necessity of a covenant between States, ideally at world level, in order to prevent situations that involve such sufferings and offences to human dignity as is the case with surrogacy, especially to the ‘surrogate mother’ and the children involved.