In europeinfos
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!
