I. Cross-border surrogacy concept and legal problems. II. European States’ practices 1.- An overview of European States’ regulations and solutions 2.- The case of Spain: Another controversial case. III. The role of International organisations. 1.- International case law 2.- States’ reactions. IV. Conclusion.
I.Cross-border surrogacy concept and legal problems
Surrogacy is a practice whereby a woman becomes pregnant with the intention of giving the child to someone else upon the birth. The surrogate mother, who gives birth to the child, signs a contract, the surrogacy arrangement, with the intended parents. Through this contract, the surrogate mother, after having the baby, renounces to the maternity, so the legal parenthood is attributed to the new parents. The intended parents can sometimes be the genetic parents due to artificial insemination techniques (using their sperm/eggs), or it is also possible for them not to have any genetic participation.
The surrogacy can be altruistic or for commercial purposes, depending on the existence of a price in return for the gestation.
Prohibiting surrogate practices in the States leads to the expansion of a foreign market for such practices. In countries where surrogacy is not possible, because it is prohibited or not regulated at all, a cross-border surrogacy appears. Here, the intended parents travel to another country where surrogacy arrangements are permitted, more readily facilitated or cheaper. Parents go to the State of birth and sign a Surrogacy arrangement with the biological mother.
The continuing steady stream of reported decisions concerning legal parentage following international surrogacy agreements at the national and international level let us come to the conclusion that cross-border surrogacy is an increasing prevalent phenomenon commonly widespread, and that such number of problems is also increasing in quantity and in their complexity.
Apart from the technical questions, in cross-border surrogacy situations there are important and difficult legal questions to answer. Once the baby is born, parents have to return to their country, where the parenthood must be registered. The intended parents have to obtain the attribution of the legal status as the parent of the child and, because of this, the parenthood created in another State has to be recognised by national authorities.
In most States, legal parenthood can be attributed on a certain number of grounds other than biogenetic affinity, but these grounds need to be in accordance with national law. Problems arise in countries where surrogacy is forbidden, the surrogacy contract is null or void or there is no regulation at all, so there is no possible ground to attribute the paternity to the intended parents. In some countries the surrogacy can even have penal consequences.
These legal problems are usually related to private international law, because when a country prohibits surrogacy or makes no express provision of it, the recognition of the legal status becomes difficult or even impossible, if the authorities decide that the surrogacy which was made in a foreign State goes against the national public order.
In the States where surrogacy is forbidden, there are many important reasons that support this idea. Apart from internal or religious questions about natural origins, reasons such as exploitation of women, illegal adoption, sale of children, human trafficking, enrichment of intermediaries and commercial aspects in general that make children become mere commodities are behind the prohibition of this way of reproduction.
On the other side, if authorities do not recognise legal parenthood, they are acting against the interest of the child, whose biological mother has renounced to the legal parenthood. The best interest of the child is a compulsory obligation for States, according to national laws and to international conventions.
Balance is not easy.
II.European states’ practices
1.-An overview of European States’ regulations and solutions
The European Union (hereinafter, EU) landscape is extremely varied when it comes to surrogacy policies and legislation. Political parties, institutions, associations of medical professionals, religious groups, social movements, private and public interests, all contribute to particular policy designs and legislations.
According to the European Parliament data, there are some countries where surrogacy is prohibited, such as Germany, Italy, France, Spain, Finland, Slovenia, Sweden or Bulgaria. In others there is no express provision for it, such as in the case of Denmark, Belgium, Austria, Malta, Hungary, Ireland, Latvia, Romania, Lithuania, Estonia or Romania. Finally, there are also some countries where surrogacy is permitted, such as the Netherlands, United Kingdom or Greece.
Outside the EU, surrogacy is permitted in Albania, Georgia, Croatia, Russia or Ukraine and beyond Europe is permitted in US (some States), Australia, South Africa, or India.
The case of Spain; another controversial case
The case of Spain is not a unique case. In more countries, in spite of being forbidden by law, the guardianship by surrogacy and the legal parenthood are recognised and entered in the Civil Registry (or at least, it has taken place many times). In Germany, France or Italy we can also find some examples.
Surrogacy is forbidden in Spain by the “Law on the Techniques of Assisted Reproduction” (art. 10 LTRA): “A contract convening the gestation, whether for profit or gratuitous, of a woman who will renounce to maternal parentage in favour of a contracting party or a third party, will be null and void”. The law forbids surrogacy explicitly and reinforces the presumption according to which the mother is the woman who gives birth.
Regardless of it, the Directorate General for Registers and Notaries issued a Directive the 5th of October 2010 providing for the registration in the Civil Registry of children born from surrogacy in countries where the law provides for it, and with the condition that at least one of the parents is Spanish. This regulation adopted a “liberal” approach to recognition of parenthood delivered in a foreign country following an international surrogacy agreement. The reasoning is that we are talking about a birth which took place abroad, in a country where it is permitted and, therefore, the lack of inscription would go against the minor’s interest, among other arguments that will be highlighted later.
The landscape is not easy because the Spanish Public Prosecutor challenged the registration of a parenthood document from a surrogacy contract which took place in US. After two judgments considering art. 10 LTRA like public order and revoking the registration of the birth, the Spanish High Court confirmed these decisions (TS February 6th, 2014) and, therefore, the revocation of the US birth certificate inscription. On February 2nd, 2015 the Spanish High Court confirmed this precedent after a motion of dismissal arisen as a result of the jurisprudence of the European Court of Human Rights in these cases. According to the Spanish High Court, Spain does not violate art. 8 of the European Human Rights Convention, because Spanish law has other ways to obtain legal parenthood.
Again, and regardless these judgments, the Directorate General of Registries and Notaries has issued a new circular dated on 11th July, 2014, stating that the 2010 DGRN Instruction must be applied by registries despite the contrary resolution of the Spanish Supreme Court. Disorder, anarchy and legal insecurity are served.
III.The role of international organisations
1.-International case law
The fact that Human Rights are involved in the Surrogacy is what has made international organisations deal with this issue. Important organisations such as the United Nations Committee on the Rights of the Child, the European Court of Human Rights or the EU are aware of the protection of the children, checking and controlling the respect to the civil status of the child, the personal identity, the efficiency of legal parentage, the citizenship and prevention of the stateless or other rights like visiting, inheritance and so on. Rights incorporated in the United Nations Convention on the Rights of the Child, in the European Convention on Human Rights or in the Charter of Fundamental Rights of the European Union must be accomplished by States in any situation, including cross-border surrogacy.
European Court of Human Rights Case Law (ECHR) has had a special impact in this issue. The Court allows surrogacy to be prohibited by States but restricts the impact of prohibition, stating that the prohibition infringes the European Conventions of Human Rights, especially private life of children.
Two decisions against France (Mennesson v. France -January 26th, 2014- and Labassee v. France) and one against Italy (Paradiso and Campanelli v. Italy –January 27th, 2015), have contributed in a special way to the protection of the children and to the validity and registration of birth in a foreign country arising from an international surrogacy agreement. Effects go beyond Europe, because in spite of it being a decision from a regional Court, the State of birth may well be outside Europe.
In the decisions against France (Mennesson and Labasse), the transcription of the foreign birth certificate into the French Registry was denied. The ECHR held that France’s refusal to recognise or permit the establishment of the legal relationship between children born in USA following international surrogacy agreements violated art.8 of the European Convention, because the denial was against the children’s right to respect for their private lives.
The ECHR placed emphasis on: 1) the fact that the position under French law completely precluded the establishment of a legal relation between the children and their intended father; 2) the intended father was, for French purposes, the children’s genetic father. Thus, these two arguments were used by Spanish High Court to defend that Spanish judgement did not violate art. 8, because there are other ways to get legal parenthood, and biological fathers are always recognised according to Spanish Law.
We don’t know the decisions when cases have different patterns from Mennesson and Labasse. The question whether providing any method for the establishment of legal parentage will satisfy art.8 of the Convention is still an open question. Moreover, the question of the parentage if there is no genetic connection is open. Other ways to get the parenthood not forbidden in countries may exist, but they need a procedure which may be lengthy and may have an uncertain outcome. Lengthy, uncertainty and financial or emotional impact are not taken into account.
The right to respect for private life requires that everyone should be able to establish details of their identity as an individual human being, which includes the legal parent-child relationship. Moreover, in determining whether a “fair balance” has been struck, the ECHR will “have regard to the essential principle according to which whenever the situation of a child is an issue, the best interests of that child are paramount”. It is also noted that deterring nationals from going abroad to take advantage of methods of assisted reproduction prohibited on a State’s own territory might be desirable, but the effects of non-recognition of legal parent-child relationship are not limited to the parents alone, and it also affects the children and its respect for the children’s best interest, which must guide any decision in their regard.
All the mentioned decisions leave States in a challenging position. The impact of the ECHR decisions has been significant, especially in States where the approach was more restrictive. In general, the internal position has not changed, but there are signs of a trend towards recognition of parentage in international surrogacy agreements’ cases:
In Germany the federal Court of Justice (10th December 2014) stated than a Californian judgment should be recognised naming two intending parents as the legal parents of a child following an international surrogacy agreement.
In Switzerland, the Higher Cantonal Administrative Court of St. Gallen (August 19th, 2014) held that two intended parents should be registered as legal parents of a child born following an international surrogacy agreement in accordance with an US birth certificate. The decision is under appeal to the Swiss Federal Court. The Federal Office of Justice appealed the decision because surrogacy is constitutionally prohibited in Switzerland.
In France, Prime Minister made it clear that France will follow the ECHR decisions and that it might be possible to envisage an “international initiative” in this area. He also confirmed that France will not change its domestic prohibition of surrogacy.
In England, the High Court determined that an order conferring legal parentage on the intended parents following an international surrogacy agreement goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being.
Beyond Europe, the approach of States also tends towards facilitating the recognition or establishment of children’s legal parentage with intending parents on the basis of the child’s best interests. Australia, Brazil or Canada have had recent recognitions taking into account that the interest of the child must outweigh public policy considerations and must prevail over the circumstances of his/her birth.
States may have serious concerns about the circumstances in which cross-border surrogacy is developed. Apart from the public order as the most important limit to the cross-border surrogacy, other points must have an impact in the admission of the recognition of the legal parenthood, such as the free and informed consent of the surrogate mother or her husband, the medical treatment, other rights of the children such as the awareness about their genetic origins, the suitability of intending parents or the role of intermediaries. The control of the situation is a logical requirement of States.
Also, the interference of other questions related to Human Rights has to be taken into account. For States, broader human rights can arise in these cases: child abandonment, child trafficking, links with the prostitution and women slavery or genetic trace information. The commercial nature of the surrogacy can generate a market in developing countries and a very lucrative industry.
The situation cannot remain in these terms of contradiction and uncertainty. Actions need attention in two different levels: national and international.
At a national level, the legalisation and surveillance of the surrogacy is a possibility that States must take into account. If developed States establish surrogacy as a possibility, couples would not need to cross borders and, if they do, the cross-border procedure could be much more controlled.
Some existing regulations can be an example, like Greek Law or South African Laws. In these regulations, a judge must pre-approve the surrogacy agreement before the surrogate mother is impregnated in order for it to be legally valid and enforceable. Once they have the baby, national rules of attributing legal parenthood are going to be applied and it is going to be necessary to recognise the national or foreign procedure and documentation. In the supervision process (judges, other authorities or even lawyers could supervise the agreement and the procedure) a lot of things could be foreseen: the required (or not) genetic connection, the gratuity, the costs and compensations, the legal advice about the consequences of the agreement, the medical institutions authorised by States, and any other important information for States.
This kind of regulations would eliminate risks, intermediaries and frauds, and therefore would prevent parties from some other long and uncertain procedures in order to get legal parenthood.
On the other side, since Human Rights are involved, States and International Organisations are thinking about some regulations or approaches to solve or mitigate the big problems that surrogacy may create. An international legislation is presented as an effective solution by international organisations. The International Community has to get together and consider a possible multilateral framework that makes possible to combine all the interest.
Harmonisation of private international law or cross-border cooperation between States needs to be the tendency in this complicated subject, where the internationalisation creates problems that can only be solved with international solutions and surveillance.
The problem has to be grasped as a whole, and not only regarding the matter of recognition from Western couples’ point of view (as the ECHR does). The surrogacy needs to be regulated as a whole, respecting Human Rights everywhere and in the generality of the cases. Well established standards of international law are already implemented in the Rights of the Child and the application should also be compulsory in this subject. Adoption is an example, regulated by the Hague Convention. International organisations are already working on this, being the “Comparative Study on the Regime of Surrogacy in EU Member States (2013)”, made by the European Parliament, or “The Surrogacy Project: an updating note (2015)”, made by the Hague Conference on Private International Law, two good examples of the international efforts and results.
It will not be long until we start to see substantial changes.