On Tuesday, March 15, a decision was made in Paris that can only be described as a victory for human rights. The Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe (PACE) rejected a report recommending the legalization of surrogacy in all forty-seven Member States.
While surrogacy arrangements can take a variety of forms—if in-vitro fertilization is used, the “birth mother” and the “genetic mother” can be different people, and it’s even possible for both biological parents to be anonymous sperm and egg donors—at its essence, surrogacy is an agreement whereby the birth mother agrees to carry a child for a couple who are unable to have children. So why describe the PACE committee’s decision as a “victory” for human rights? Shouldn’t those who are unable to have children have the option of using a surrogate?
Surrogacy is sometimes presented as a “compassionate” option for couples unable to conceive and have a child naturally. If the woman carrying the child consents and understands that she must hand over the child to the intended parents after birth, then what’s the problem? Or so the thinking goes. But this attitude glosses over some substantial complications that are not only challenging for law and policymakers, but also devastating for the parties involved in surrogacy arrangements.
A History of Problematic Litigation
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Surrogacy agreements have already caused a great deal of head scratching in courts across Europe. When a woman, the “birth mother,” agrees to carry a child on behalf of a couple, questions regarding parentage, custody, and access rights are not easily answered, especially when there is a breakdown in the surrogacy agreement. Cases touching on these issues have been heard in domestic courts, as well as in the European Court of Human Rights (ECHR).
In recent years, the ECHR has made some significant—and troubling—rulings relating to surrogacy. In the cases of Labassée v. France and Menesson v. France, the court compelled France to set aside its own ordre public, which defines a child’s mother as the woman who gave birth to him or her. In Paradiso and Campanelli v. Italy, the court condemned Italy for removing from the custody of an infertile couple a child whom they had purchased from a Russian fertility clinic for €45,000. And in Laborie and Others v. France, ECHR judges ruled that same-sex couples should have a right to use surrogate mothers to construct their own version of family.
The ECHR’s decisions in these cases ignored the right of children, as set out in the UN Convention on the Rights of the Child, to know and grow up with their biological parents. There may be up to six persons claiming parental rights over a child born out of surrogacy agreements: the surrogate mother, the genetic mother (egg donor), the commissioning mother, the husband of the surrogate mother (presumption of paternity), the genetic father (sperm donor), and the commissioning father. These problematic situations are just a small sampling of surrogacy cases in Europe; there are more in the pipeline. It is highly likely that as the number of surrogacy agreements increases, so will the controversial litigation.
The proliferation of cases across Europe demonstrates that when it comes to surrogacy, confusion reigns. Both in the European Union and in the wider Council of Europe, there is little clarity in many countries concerning the legality of surrogacy. This legal uncertainty means that the courts are often faced with vexing questions when surrogacy agreements break down.
But amid the uncertainty, one thing is clear: Surrogacy contravenes European and international law. The sheer number of laws it violates is staggering: the Charter of Fundamental Rights of the European Union (2000), the Convention on the Rights of the Child (1989) and its Protocol on the Sale of Children (2000), the Conventions on the Elimination of all Forms of Discrimination Against Women (1979), on the Adoption of Children (1967 and 1993), on Human Trafficking (2005), and on Human Rights and Biomedicine (1997). All of these documents place human dignity (as opposed to the commoditization and objectification of the human body) at their heart and outline the superior interest of children to know their origin and identity. Not least, surrogacy contravenes the law since it represents a modern form of human trafficking. This is clearly outlined by the European Parliament Resolution on Priorities and Outline of a New EU Policy Framework to Fight Violence against Women (2011), which condemns “the serious problem of surrogacy which constitutes an exploitation of the female body and her reproductive organs.” It emphasizes that “these new reproductive arrangements, such as surrogacy, augment the trafficking of women and children and illegal adoption across national borders.”
But the knotty legal and policy questions around surrogacy are just the tip of the iceberg. Surrogacy also interferes with the fundamental right to family and private life – as outlined in Article 8 of the European Convention on Human Rights – of both the child and the surrogate mother. It exploits the female body and transforms children into a tradable commodity. The European Court of Human Rights has stated that “respect for private life requires that everyone should be able to establish details of their identity as individual human beings” and underlined that “an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned” (Mennesson v. France).
Exploitation and Abuse
Recognizing these problems, the European Parliament has already taken a firm stand against surrogacy by adopting the Annual Report on Human Rights and Democracy in the World 2014. This report, tabled by Romanian MEP Christian Dan Preda, condemned “the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity.”
This position confirmed the European Parliament’s earlier opposition to surrogacy, as expressed in the 2011 resolution on priorities and outline of a new EU policy framework to fight violence against women. This resolution acknowledged “the serious problem of surrogacy which constitutes an exploitation of the female body and her reproductive organs.” The European Parliament is clear in its view that the practice of surrogacy should be banned and treated as a matter of urgency in human rights instruments. The PACE would do well to follow suit.
Human rights abuses are taking place in commercial surrogacy arrangements, particularly in the “surrogacy farms” of India, where poor women carry children for wealthy couples from the West. There, and in other developing nations, the surrogacy industry is largely unregulated. The European Parliament has recognized the dangers, saying it “considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments.” The increasing number of reports of human rights abuses, such as women being held against their will for the duration of the pregnancy, is sadly unsurprising. The parallels with modern slavery and child trafficking are plain to see.
A Troubling Conflict of Interest
This dark history makes it somewhat baffling that the report the PACE committee considered in Paris last month was authored by someone with a direct link to surrogacy providers in India. Dr. Petra De Sutter, a Belgian senator and head of the Division for Reproductive Medicine at the University Hospital of Ghent, cooperates with an Indian clinic that offers commercial surrogacy services. It comes as no surprise, then, that in the report, De Sutter urged Member States of the Council of Europe to adopt a legal framework for the regulation of surrogacy.
The decision to appoint De Sutter to oversee a report assessing the delicate human rights issues surrounding surrogacy raised more than a few eyebrows. De Sutter’s department is one of only four institutions in Belgium that offers surrogacy services, despite the absence of any legal framework in the country. De Sutter has also written a number of academic articles in support of surrogacy and has said that surrogacy is one of her priorities as a transgender person in politics.
The code of conduct for members of PACE states unequivocally that “Members shall avoid conflicts between any actual or potential economic, commercial, financial or other interests on a professional, personal or family level on the one hand, and the public interest in the work of the Assembly on the other” (Code of Conduct for Members of the PACE, Rules of Conduct, §8).
According to these guidelines, De Sutter’s proposals should never have even been considered. Yet, despite the clear conflict of interest that arises from De Sutter’s position, the committee surprisingly voted in favor of not considering a potential conflict of interest when it had the chance.
De Sutter’s obvious vested interests aside, adopting the report’s proposals on the legalization of surrogacy would have been a betrayal of women and children across Europe. Moldovan Member of Parliament Valeriu Ghiletchi summed it up this way: “This report ignored the fact that surrogacy is a form of exploitation of women and children as it reduces the woman to a reproductive machine and the child to an asset in a business transaction.”
With the recent vote on De Sutter’s report, there was a real danger that the PACE committee would choose to take a different position to the European Parliament, which is unambiguous in its stance against legalizing surrogacy. The PACE has a great deal of influence on the ECHR, so a decision to adopt De Sutter’s proposals could have been disastrous for the 47 Member States of the Council of Europe. Thankfully, these fears were not realized.
A Positive Step toward Protecting Women and Children
By voting down Dr. De Sutter’s proposal, the committee has taken a step in the right direction. But if the fundamental human rights of women and children are to be protected, the committee needs to join the European Parliament in condemning all forms of surrogacy. An outright ban is the only way to protect women and children. Allowing “altruistic” surrogacy opens the door for every form of it.
As surrogacy agreements proliferate, one thing is becoming clear: It is not a solution to the pain of childlessness. On the contrary, in the long run it can only add to the heartache of all parties involved. As the contentious litigation and human rights abuses surrounding it make clear, surrogacy is actually a human wrong, not a human right.