Surrogacy, which raises several legal and ethical questions, imposes a delicate balancing of the different rights involved: the rights of children born from surrogacy, the rights of surrogate mothers, the rights of children waiting for adoption and the rights of intended parents.

The situation becomes more complicated when it comes to cross border surrogacy, which involves serious issues of private international law relating to the recognition of foreign birth certificates or judgements, the choice of the law in establishing or contesting parentage, the question of jurisdiction and the role of the public order.

European countries have taken different approaches: in some countries surrogacy is legal, in others it is prohibited or simply ignored.

The Court of Justice of the European Union and the European Court of Human Rights both have adjudicated cases on cross border surrogacy. On 18 March 2014, two judgments came down from Luxembourg, C.D. and Z. A few months later, Strasbourg delivered three judgements: Mennesson v. France, Labasse v. France and Paradiso and Campanelli v. Italy.

The two European Courts seem to take quite different approaches: while the Luxembourg Court has maintained strict adherence to the question at issue and the literal interpretation of the European legal instruments invoked, the Strasbourg Court has relied on the best interests of the child principle and on an evolutionary interpretation of the European Convention on Human Rights.

The present paper asks whether there is a current dialogue between the European courts, like it was developed in the past in the field of fundamental rights, and if it may be developed in future, in order to reach a common standard of protection of the fundamental rights involved and to develop a system of shared principles and values which may be used as a point of reference for national judges and legislators as well as in the eventual drafting of international conventions on surrogacy.

SOMMARIO:

I. Introduction. - II. The rights and interests to be balanced in cross border surrogacy. - III. The parents’rights at issue - IV. The best interests of the child - V. The European Courts case law in the context of the works of the Hague Conference on Private International Law for the drafting of international instruments - VI. The present and the future of a dialogue about surrogacy - VII. Final considerations. - NOTE

I. Introduction.

Surrogacy has become a more and more frequent practice in the European States, despite the lack of a clear national and international legal framework, and has drawn the attention of major international organizations and bodies, such as the Council of Europe [1], the UN Committee on the Rights of the Child [2], the Hague Conference on Private International Law (HCCH) [3], as well as the International Commission on Civil Status (ICCS) [4]. A recent study of the European Parliament shows that the European Union countries approach the issue differently: in some States surrogacy is prohibited; in others it is legal or partially restricted (especially with the aim to prevent commercial exploitation or illicit practices in fertility clinics [5]; in others it is simply ignored. As Advocate General Wahl recently said, “surrogacy, an increasingly common form of medically assisted reproduction, constitutes a sensitive political and social issue in a number of Member States» [6]. As underlined by the European Parliament, surrogacy may take different forms. In fact, it is possible to distinguish “traditional surrogacy”, where surrogates (women who help commissioning persons to become parents by carrying a child for them) become pregnant using the commissioning father’s gametes and their own ova, from “gestational surrogacy”, which involves in vitro fertilization treatment (IVF) whereby either the commissioning [7] mother or a donor provides the ova employed in the fertilization process [8]. In the latter case, the surrogate mother is not genetically related to the child she carries. It is also possible that the child born from surrogacy has no genetic link with a commissioning father in cases where both the gametes come from donors. The issue of surrogacy involves extremely difficult questions of private international law: in fact, it raises problems concerning, among others things: (i) birth registration and the establishment of legal parentage; (ii) the possible recognition of legal parentage already established abroad; and, (iii) the application of rules concerning the contestation of legal parentage [9]. It also poses delicate questions of civil law, such as the qualification of the surrogacy arrangement, in particular whether it should be considered a proper and enforceable agreement, even if it provides for commercial treatment of some delicate aspects of human [continua ..]

II. The rights and interests to be balanced in cross border surrogacy.

Surrogacy (and especially, cross border surrogacy) involves several rights that may be opposite and even clashing: the rights of children born from surrogacy, the rights of surrogate mothers, the rights of children waiting for adoption, and the rights of intended parents [37]. It is possible to debate whether the above-mentioned rights are to be classified as civil rights, human rights, expectations, or mere desires or if they are core rights or rights that may be subject to restrictions. Among the rights of surrogate mothers, there are in primis the rights to health and to life, as these women need to be protected from unhealthy and dangerous treatments that could cause serious illness or even death, as the Permanent Bureau of the HCCH has reported [38]. In gestational surrogacy, it is necessary also to protect donors from dangerous treatment in the extraction of ova, which may provoke infertility, diseases and, in some cases, death [39]. Concerning children born from surrogacy, several rights may be jeopardized: the right to their identity [40], the right not to suffer adverse discrimination on the basis of birth parental status [41], the right to have their interests regarded as a primary consideration in all actions concerning them [42], the right to trace their genetic and birth origins [43], the right to grow up in a family and to receive care [44], and the right to be protected from abandonment [45]. The children also have to be protected from illegal trafficking and bad treatment: while adoption procedures allow authorities to exercise a serious degree of control concerning the suitability of adoptive parents, surrogacy procedures do not provide for any control on parental suitability to care for children [46]. Although the argument is sometimes made that there is a right to became a parent [47], there is currently no international treaty or convention establishing a human “right to a child” [48]. This is the case notwithstanding an increasing trend toward recognizing reproductive rights with the aim to assist couples and individuals to achieve their reproductive goals and fully exercise the right to have children by choice [49]. The current absence of any such human right must be considered when evaluating the rights of commissioning parents. In addition to the rights of individuals, there are also several State interests to be protected. First of all, [continua ..]

III. The parents’rights at issue

The first question to be investigated through the analysis of the European Court’s case law is how they considered the parents’ rights: in particular, whether the Courts identified any fundamental rights to be protected and whether they were entitled to social and economic rights (and to what extent of protection thereof), such as the right to a paid leave for commissioning parents. a) The Strasbourg perspective: the right to respect of family and private life.In all the three judgments rendered between 2014 and 2015 by the Strasbourg Court, parents’expectations and rights seem to have been partially recognized and partially frustrated, as described in the following. The Mennesson and Labassee deal with France’s refusal to grant legal recognition to parent-child relationships lawfully established in the United States as a result of commercial surrogacy agreements. The applications were lodged with the ECtHR by the intended parents, personally and on behalf of the children born as the result of the surrogacy arrangements. The Strasbourg Court did not formally join the two cases, but it developed the same legal reasoning and decided them simultaneously. The facts are very similar. In 2000, the Mennessons, a French married couple, went to California to obtain two daughters through a commercial surrogacy arrangement. In 2001 the Labassees, another married couple, obtained a daughter in Minnesota in the same way. In both cases, the children were conceived using the intended fathers’sperm and an anonymous donor’s eggs. In both the American States, the authorities had issued birth certificates stating that the newborns were the children of the Mennesson and Labasee couples. However, French authorities refused to enter the birth certificates in the national register. The couples therefore appealed against the refusals and the case was decided in the final instance by the French Court of Cassation, which deemed that such entries in the register were contrary to the principle of inalienability of civil status, one of the fundamental principles of French law, and that granting recognition to such birth certificates would give effect to surrogacy agreements that were null and void under the national Civil Code, on the basis of public order. Both couples then took the case to the Strasbourg Court, acting also in the name of their children, claiming violations of their rights to respect of family and private [continua ..]

IV. The best interests of the child

The child’s best interests principle is recognized by several international and regional legal instruments [99]. First of all, it is enshrined in the UN Convention on the Rights of The Child (UNCRC), at Art. 3, which states, at par. 1, that, «in all actions concerning children, whetherundertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration» [100]. The concept of «all actions concerning children» implies that the best interests principle is applied not only where a decision directly affects a child, but also when he is indirectly affected, as in cases where a child’s parent is at risk of being removed [101]. In its General comment n. 14, the UNCRC has pointed out that the best interests principle operates as both a substantive right and an interpretative device [102]. Even if the best interests of the child’s principle is not expressly used in the International Covenant on Civil and Political Rights, the Human Rights Committee has referred in two of its General Comments, to the «paramount interest of the children» in cases involving the dissolution of marriage [103]. It is also included in the African Charter on the Rights and Welfare of the Child, at Art. IV, which provides that «in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration» [104]. The UNCRC, ratified by all the Member States (but not by the EU itself), is also the source of Art. 24 of the Charter, as disclosed by the Explanations, which inscribes the child’s best interests principle among the fundamental rights of the European Union [105]. While the EU institutions lack of direct competences over the general promotion of children’s rights in the TFUE, several aspects of EU law significantly affect children, as in the asylum and immigration policy or in the context of cross border criminal law. Therefore, despite its intrinsic limits, due to the restricted field of application of the Charter according to Art. 51, this provision may have a significant impact on the development and interpretation of a wide range of EU measures [106]. In fact, the ECJ’s recent case law also shows increasing attention to this principle in the context of family [continua ..]

V. The European Courts case law in the context of the works of the Hague Conference on Private International Law for the drafting of international instruments

a) The impact of the European Courts case law on the works of the HCCH for the drafting of international instruments.It has been argued by several scholars that the issue of cross border surrogacy should be regulated at an international level, in order to protect the different rights and interests involved in a coordinated way and establish shared rules. In particular, it has been suggested that guidelines to rule on surrogacy should be sought in some international conventions, which already provide protection for several of the rights described in the previous paragraph, even if they do not include surrogacy[127]. These include the International Covenant on Economic, Social and Cultural Rights [128]; the Convention on the Elimination of All Forms of Discrimination Against Women [129] and, of course, the UN CRC [130]. Another suggested course of action is to draft an international convention drawing inspiration from the 1993 Hague Adoption Convention [131], «which is also based on the principle of cooperation between the country of origin and the receiving country and on the need to regulate international adoptions to protect the people involved, especially the children» [132]. In 2010 the Council on General Affairs and the Policy of the HCCH discussed the growing problems of international surrogacy arrangements and acknowledged the related complex issues of private international law and child protection. It then agreed that the Permanent Bureau should have kept under review such issues. The following year, the Permanent Bureau presented a document that summarized the main problems arising from surrogacy concerning private international law and child protection issues, arguing on the way that the HCCH may assist in this field. It then explained that, while a uniform set of rules concerning applicable law, jurisdiction and enforcement was in theory desirable, it should have to consider carefully the practical need of such rules and the prospects of achieving consensus on such a broad set of principles [133]. In 2012, the Permanent Bureau of the HCCH drew a Preliminary report on the issues arising from international surrogacy arrangements, which underlined that, in consideration of the transnational nature of the problems arising as a result of international surrogacy arrangements, “it is difficult, if not impossible, to envisage how such difficulties can be fully resolved by individual State [continua ..]

VI. The present and the future of a dialogue about surrogacy

a)The convergence of the European Courts case law. After having analyzed the European Courts case law above reported and their approach to the issue, it is possible to reply to the question on the existence of a current dialogue about surrogacy and about its future evolution. In the analysis of the convergences and divergences, it is to be remembered that the history shows that they are accustomed to developing constructive dialogue and, consequently, common standards in protecting human rights[158], so one can imagine that this could happen for surrogacy as well in the future. Currently, it appears that there is not any explicit dialogue, because there is not any reference to the reciprocal case law or legal order by the Courts. The reasons for that may be mainly the timing of the above mentioned judgments and decision, because the judgments of the Luxembourg’s Court came down in March 2014 and the Strasbourg’s ones followed the next months [159]. This does not impede that explicit references will come in future. By now, it is anyway possible to observe some similarities in the position of the two different courts and some limited patterns of convergence. Firstly, it bears noting that neither the ECtHR nor the ECJ answered to the crucial question if the practice of surrogacy is compatible with the fundamental rights listed, respectively, in the ECHR and in the EU Charter of Fundamental Rights. It is clear that it depended by the requests of the applicants, that did not asked for a clarification on this point, but it may be possible to imagine future developments on this question, in the case law of the European Courts, also considering that in both legal orders there are norms and instruments that may serve to answer to such question. As far as the ECtHR is concerned, it is to be reminded that the Committee of Experts of the Council of Europe on Progress in the Biomedical Sciences has already strongly condemned such practice, considered contrary to human dignity [160] so that it would be significant that the Court state its position on this point. In case the Court will continue avoiding to answer such question, it should necessary refrain for going further in the legal reasoning on surrogacy and leaving a wider margin of appreciation to the signatory States. Turning to the ECJ, it is possible to argue that surrogacy is contrary to Art. 3 of the EU Charter of Fundamental Rights, Right to the integrity of the person, which [continua ..]

VII. Final considerations.

Despite the efforts in balancing the fundamental rights involved and to reach reasonable solutions, the recent case law of both courts appears to be unsatisfactory for several aspects. First of all, concerning the child’s best interests, it appears that the ECtHR did not consider certain elements, that may have been analyzed in the legal reasoning. In fact, adults who turn to surrogacy are not subjected to any control concerning their suitability to take care of a child. The Permanent Bureau of HCCH reported that, in some cases, the commissioning father had been previously convicted for offences against children or that surrogacy lead to children’s trafficking [171]. But the ECtHR gave a preference to the “de facto familiar link” without considering this aspect, even despite of the evaluation on adoption suitability of the intended parents [172]. Moreover, as highlighted by the joint partly dissenting opinion of judges Raimondi and Spano in Paradiso and Campanelli, the notion of “familiar life”, in the absence of any genetic link between parents and child, where it has been established through an illegal act in contrast with the public order, is an over-extension, and results in also extending the scope of application of the ECHR. As already suggested by the first commentators [173], the Court may (and should) take the chance to restrict this notion, as Paradiso and Campanelli was referred to the Grand Chamber: this would be in compliance with the principle of subsidiarity, which should rule the mechanism of the ECHR. Secondly, in the case of surrogacy without any genetic link with the child, it should also be considered that the child will not be able to trace his genetic origins and birth, in contrast with the UN convention on the rights of the children. This aspect, too, was ignored by the Court. Thirdly, a child born from surrogacy is always subject to transfer or removal, which may impact his or her growth and development: for example, in the Paradiso and Campanelli case, the child stayed three months in Russia with the surrogate mother and then was taken to Italy where he started living with the Italian couple. Scientific studies show that the first months after birth (and, it seems, also the months before the birth) are of paramount importance for a baby, and this should be investigated more to find out the best solution for the child. Lastly, approaching the [continua ..]

NOTE