Surrogacy is currently forbidden in most of the EU, but some forms of it are legal, for example, in Denmark and the Netherlands, while the Czech Republic has no regulation in place that allows for the practice. The proposal would lever out national regulations of surrogacy by purportedly increasing “free movement of people.” Parenthood established through surrogacy in a country like Denmark would have to be recognized across the EU, including in France and other member states where the practice of surrogacy is illegal. While it takes two to tango, it seems that no one knows how this dance will go. How will distinct national laws coexist with the proposed regulation, and what law is applicable to a family who moves from one member state to the next—the law of the country of origin or that of the destination?
No wonder France, Italy, and several other countries have rejected the proposal. While it promises legal certainty and the protection of the best interests of children, neither will hold in the case of surrogacy, where up to six people can claim parenthood—the genetic parents providing the egg and sperm, the biological mother who carries the child and her husband, and finally the commissioning couple who intend to become legally recognized parents. The very nature of the practice lacks legal certainty and puts the desires of adults ahead of the needs of the child.
Surrogacy makes both the child and the surrogate mother into a commodity. In both ‘altruistic’ and commercial surrogacy, the woman and the child are objectified. The woman is the object of a contract, and the child is treated like a commodity bought and sold on the surrogacy market. In extreme cases, it can lead to nightmare situations such as one involving a Japanese millionaire, who fathered 17 children through surrogacy in Thailand before he was stopped.
Surrogacy also undermines the human dignity of the child, as protected by the International Convention on the Rights of the Child, constituting an offense against the right to be protected from sale and the right to maintain a relationship with one’s biological parents. International law also prohibits taking any financial gain from the human body, as well as the abandonment of a child for payment or compensation of any kind. By forcing member states to recognize parenthood from surrogacy, the proposed regulation would thus not only infringe on the legislative competence of sovereign nations but upon human rights as well.
This practice of ‘parenthood on demand’ has made the commercial surrogacy market a multi-billion dollar industry, which last year was estimated to be worth 14 billion U.S. dollars, and is expected to be worth 129 billion by the year 2032. A child’s rights and best interest should always trump financial incentive. Yet, time and time again, we read horror stories in the media, like that of the Spanish actress who was able to go to the U.S. where commercial surrogacy is legal and use her dead son’s sperm samples to have a grandchild through surrogacy.
The Commission’s proposal disregards the best interest of the child and fails to uphold the principle of subsidiarity. As per the proposal, voters of more liberal member states would get to decide what type of laws on family, marriage, and parenthood all other member states must recognize. Instead of dividing states by pushing for the proposed regulation on cross-border recognition of parenthood, the EU should unite in banning surrogacy, a practice that violates international human rights and the human dignity of all.
Parenthood On Demand
This story originally appeared on 19 June 2023 in the European Conservative
Last week, the EU Parliament held a debate on surrogacy, discussing the risks of exploitation and commercialization. This comes after several member states rejected a proposal by the European Commission that would require member states to recognise every kind of alleged parenthood established in any other member state—meaning that a country like Spain, which bans surrogacy, would have to recognize parenthood established through surrogacy in the Netherlands, where forms of the practice are legal.
Though the proposal alleges not to infringe upon sovereign national legislation, it would make surrogacy a common practice across Europe. That is why some MEPs are waking up.
Surrogacy is currently forbidden in most of the EU, but some forms of it are legal, for example, in Denmark and the Netherlands, while the Czech Republic has no regulation in place that allows for the practice. The proposal would lever out national regulations of surrogacy by purportedly increasing “free movement of people.” Parenthood established through surrogacy in a country like Denmark would have to be recognized across the EU, including in France and other member states where the practice of surrogacy is illegal. While it takes two to tango, it seems that no one knows how this dance will go. How will distinct national laws coexist with the proposed regulation, and what law is applicable to a family who moves from one member state to the next—the law of the country of origin or that of the destination?
No wonder France, Italy, and several other countries have rejected the proposal. While it promises legal certainty and the protection of the best interests of children, neither will hold in the case of surrogacy, where up to six people can claim parenthood—the genetic parents providing the egg and sperm, the biological mother who carries the child and her husband, and finally the commissioning couple who intend to become legally recognized parents. The very nature of the practice lacks legal certainty and puts the desires of adults ahead of the needs of the child.
Surrogacy makes both the child and the surrogate mother into a commodity. In both ‘altruistic’ and commercial surrogacy, the woman and the child are objectified. The woman is the object of a contract, and the child is treated like a commodity bought and sold on the surrogacy market. In extreme cases, it can lead to nightmare situations such as one involving a Japanese millionaire, who fathered 17 children through surrogacy in Thailand before he was stopped.
Surrogacy also undermines the human dignity of the child, as protected by the International Convention on the Rights of the Child, constituting an offense against the right to be protected from sale and the right to maintain a relationship with one’s biological parents. International law also prohibits taking any financial gain from the human body, as well as the abandonment of a child for payment or compensation of any kind. By forcing member states to recognize parenthood from surrogacy, the proposed regulation would thus not only infringe on the legislative competence of sovereign nations but upon human rights as well.
This practice of ‘parenthood on demand’ has made the commercial surrogacy market a multi-billion dollar industry, which last year was estimated to be worth 14 billion U.S. dollars, and is expected to be worth 129 billion by the year 2032. A child’s rights and best interest should always trump financial incentive. Yet, time and time again, we read horror stories in the media, like that of the Spanish actress who was able to go to the U.S. where commercial surrogacy is legal and use her dead son’s sperm samples to have a grandchild through surrogacy.
The Commission’s proposal disregards the best interest of the child and fails to uphold the principle of subsidiarity. As per the proposal, voters of more liberal member states would get to decide what type of laws on family, marriage, and parenthood all other member states must recognize. Instead of dividing states by pushing for the proposed regulation on cross-border recognition of parenthood, the EU should unite in banning surrogacy, a practice that violates international human rights and the human dignity of all.
Martina Divković, Advocacy Officer, Europe for ADF International
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