Surrogacy convention – let’s not forget human rights are for all

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

A photo made available on 08 August 2014 shows Thai nannies holding nine suspected surrogate babies after a police raid at a residential apartment on 5 August 2014. [EPA/STR]

An international conference is currently trying to regulate surrogacy, a global business estimated to be worth roughly $5 billion a year, and the EU should weigh in on the ongoing negotiations and make all efforts to condemn and limit the practice whose principal victims are children, writes Sophia Kuby.

Sophia Kuby is the director of EU advocacy at ADF International.

Surrogacy agencies, clinics, lawyers, and medical doctors cash in on the business of selling sperm and egg cells, creating embryos in vitro, implanting them into a woman’s hired womb and providing the “commissioning parents” with a baby.

The Hague Conference on Private International Law, an intergovernmental institution comprising 82 members, including all EU member states and the EU itself, has stepped into the ethical and legal quagmire created by this business.

Their lawyers are currently drafting an international convention dealing with transnational surrogacy agreements and parentage. This week, the members of the Hague Conference are negotiating the text of the convention in The Hague. The convention will have a powerful impact on the future of international law and will take precedence over the national law of a country that ratifies it.

EU policymakers need to make sure not to tacitly or explicitly condone a practice whose principal victims are vulnerable children.

All surrogacy agreements start with the desire of a couple or a single person to have a child but quickly lead to a myriad of legal issues and serious problems for all parties. This is particularly true when there is an international element, given that the parties involved in different countries are subject to different legal regimes that regulate the practice of surrogacy in very different ways.

While a small number of countries like India, Ukraine or Russia allow commercial surrogacy, others, like the UK and the Netherlands, have legalised ‘altruistic’ or non-commercial surrogacy.

Surrogacy is not regulated but is practised and tacitly tolerated in Belgium and Poland for example, whereas it is entirely prohibited in Germany, Austria, Spain, France, among others. The convention will be of particular relevance for EU member states because it will give an important orientation for the currently very varying national laws on the matter.

The European Court of Human Rights has had to deal with a number of international surrogacy cases originating from EU member states in recent years. The couples involved lived in France and Italy, where surrogate contracts are unlawful.

Despite this, the couples concluded contracts with surrogates in a third country. When the commissioning couples wanted to enter their home countries with “their” child, the states in question, France and Italy, refused to recognise the legal parentage in accordance with their law.

While the ECHR previously took an approach tending toward a ‘de facto’ recognition of surrogacy agreements in the name of the best interest of the child (see Foulon v. France, Bouvet v. France), the most recent jurisprudence stresses the “very weighty” public interest in prohibiting surrogacy (Paradiso and Campanelli v. Italy), declaring the state’s refusal to recognize the illegal surrogacy agreement as proportionate, and proposing instead to provide the child with a family through the established adoption procedure.

Surrogacy and adoption represent two fundamentally distinct approaches for couples seeking children. While the principal aim of surrogacy is to provide a child for the commissioning parents, in practice it deliberately removes a child from his or her actual birth parents.

In contrast, adoption seeks to remedy a situation of existing abandonment by providing a child with a new family. Adoption is grounded in the concrete needs of an already existing child; surrogacy is focused on the desires of adults regarding a future child.

The problems resulting from surrogacy leave the weakest party – the child – exposed to the worst possible outcomes. There is no ‘right to a child’ in international law, and the ECtHR has repeatedly underlined the absence of such a right in its jurisprudence.

Rather than try to solve technical legal conflicts resulting from illegal international surrogacy agreements, an international convention needs to protect vulnerable human beings from becoming objects of contracts, or a commodity in a commercial exchange, if it wants to live up to the human rights standard which the West proudly proclaims.

The practice of surrogacy clearly breaches a series of the child’s legal rights, such as the right to be born into and grow up with his or her biological family, the right to family reunification, the right to maintain a relationship with both parents and the right to be protected from sale or human trafficking.

All forms of surrogacy put an otherwise legitimate desire (to become parents) above the best interest of the child, turning the child into the object of a (commercial) contract and ultimately a traded commodity.

As such, it is unavoidable that the child and the surrogate mother be subject to “quality control,” as the highly publicised case of Baby Gammy in Thailand has shown.

In that case, one of the twins that the Thai surrogate mother was carrying for the commissioning couple from Australia had Down Syndrome. The couple complained that they had ordered a ‘healthy child’ and demanded that the surrogate mother undergo an abortion of the twin with Down Syndrome. When the surrogate refused, the commissioning parents accepted the ‘healthy twin’ and abandoned the other child.

Current surrogacy technologies and methods mean that there can be indeed up to six adults who can claim genetic, biological or legal parentage over a child.

Judges and state authorities are therefore confronted with cases that involve multiple parties: the genetic parents – the egg and sperm donors, the biological parents – the surrogate mother who gives birth to the child and her husband who would in most jurisdictions be recognised as the father, and the adults claiming legal parentage – the “commissioning” couple.

This creates a chaotic situation, which undermines numerous internationally codified human rights.

An international convention on surrogacy can only create clarity and uphold human dignity by:

  1. Condemning any kind of surrogacy (commercial or otherwise) as a practice that violates human rights and undermines human dignity;
  2. Explicitly recognising and securing the right of a state to decline to recognise foreign judgments or claims for parentage based on surrogacy agreements;
  3. Making clear that such states may resort to their own established adoption procedure for children when confronted with demands for recognition of parentage involving children entering their jurisdiction after international surrogacy agreements;
  4. Calling for heavy penalties for those who facilitate international surrogacy agreements such as intermediary agencies, clinics, lawyers, doctors.

Surrogacy creates generations of legal and relational chaos. EU policymakers should do everything within their power to achieve a well-drafted and strongly worded international convention that would significantly limit the damage done by international surrogacy.

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