Surrogacy: light at the end of the tunnel?
A broad consensus can be reached to start curbing such practices that contravene human dignity.
Surrogacy has become a booming industry across the world. This is true both in developed and in less developed countries. It represents a serious violation of human dignity and, specifically, the dignity of human procreation. It is an infringement of the basic fundamental rights of the woman and of the child (see europeinfos, no. 165). It also involves trafficking in human beings for reproductive purposes.
Gestational surrogacy is an issue of increasing preoccupation and concern in contemporary political and legal debate across the European Union. Although no common rules have so far been adopted at EU level, there are common ethical and legal grounds among Member States for tackling this phenomenon. Furthermore there is an expanding case law of the European Court of Human Rights (ECHR).
Recent developments: the case law of the European Court of Human Rights
The ECHR case law emanates from Mennesson v. France and Labassee v. France (see analysis in previous europeinfos, no. 176) and, more recently, Paradiso and Campanelli v. Italy. In the first two cases, the Court ruled that by preventing both the recognition and the establishment under domestic law – by means of a declaration of paternity or of the adoption procedure, for example – of the relationship between the child born through surrogacy and his biological father, France overstepped the permissible limits of its margin of appreciation in this field. Having regard also to the importance to be given to the child’s interests when weighing up the competing interests at stake – including the legitimate aim of France to deter its nationals from having recourse abroad to methods prohibited on its own territory – the Court concluded that the right to respect for the private life of the child was infringed.
In the third case, ‘Paradiso’, as there is no biological link between the child and any of the members of the commissioning couple, the ECHR took a different stance. Indeed, despite this absence of biological ties (and the fact that the child has been with the couple for only six months), the Court considered that there was indeed family life, as the commissioning couple behaved as parents and, therefore, the removal of the child from them constituted a violation of the right of the child to family life.
These cases are underpinned by a very narrow and tendentious interpretation of family life, where the affective ties play the highest, if not the exclusive role. They also rest on a poor understanding of the best interest of the child: establishing the filiation with regard to someone who paid for obtaining the child is not far from a commodification of the filiation; sanctioning a practice which is clearly against his dignity and his best interests. By sustaining such interpretations the Court is clearly opening a door to the recognition of surrogacy or, in practice, giving it legal effect.
A first step towards curbing surrogacy and human trafficking for reproductive purposes
Against this background, the COMECE Working Group on Ethics in Research and Medicine has published an “Opinion on Gestational Surrogacy: the question of European and International Rules”, which was presented at the European Parliament (EP) on 23 February last, in a joint event with the Working Group on Bioethics and Human Dignity of the European Popular Party, chaired by MEP Miroslav Mikolasik (EPP, SK). Following A Comparative Study on the regime of surrogacy in EU Member States commissioned by the EP in 2013, the Opinion of the COMECE’s Working Group assesses the ethics of the practice of surrogacy, discussing its tangled legal repercussions. The Opinion makes clear that all forms of gestational surrogacy represent a violent assault on the human dignity of all involved in this exchange; in particular, surrogacy instrumentalises the gestational mother (often trapped in involuntary poverty and ruthlessly trafficked) and treats the child as an object. Therefore, the practice can in no circumstances be countenanced.
The Opinion concludes that an agreement can be reached, for a start, on “refusing a transcription of birth certificates or a recognition of the legal decisions of the birth country” concerning children born through a ‘surrogate mother’ whenever some sort of compensation has taken place (the case of ‘commercial surrogacy’). This accommodates ECHR case law, as this Court, as referred above, does not impose the obligation of transcription, and represents a fair balance between the public and the private interests at stake: on the one hand, the interest of deterring such practices, offensive to human dignity and other fundamental values and rights that the European Union espouses, as well as the interest of preventing trafficking in human beings (see decision of 8 July 2014 in the case D. and others v. Belgium); and, on the other hand, the considerations regarding the best interests of the child, in concreto.