ADF International


The mother is certain, for now

Lorcán Price and Laurence Wilkinson

PARIS, France – PACE report on surrogate motherhood postponed

The Roman law maxim ‘mater semper certa est’ or ‘the mother is always certain’ no longer enjoys a privileged position in the law of many states. Medical science has ushered in new innovations that have fundamentally altered old certainties regarding parentage. The maxim is in danger of losing its relevance in the in the face of rapidly altering techniques and discoveries, in the face of these changes yesterdays certainty is no longer so certain. This is particularly true in the realm of ‘surrogacy motherhood’. In essence surrogacy involves an agreement by a woman, the ‘birth mother’ to carry a child with the intention of giving that child to another person or couple, the ‘intended parents’ after birth. This agreement may or may not involve compensation for the ‘birth mother’. Using in-vitro fertilization, the ‘genetic mother’ of the child may even be a different person to the ‘birth mother’, and it is possible for both biological parents to be anonymous sperm and egg donors.

Surrogacy engages profound questions regarding the appropriateness, or otherwise, of such agreements, and their consequent impact on the rights of the child and the parties involved. As matters stand, within the European Union and the wider Council of Europe there is a lack of clarity in many countries regarding the legal permissibility of surrogacy. Where there is legal uncertainty the courts are often faced with troubling questions regarding parentage, custody and access rights where there is a breakdown in a surrogacy agreement. The European Court of Human Rights in Strasbourg has dealt with cases like Laborie and Others v. France (no. 44024/13) wherein the court found that same-sex couples should have a right to use surrogacy mothers to construct their own version of a “family”. (Find a short summary of this case and others at Agenda Europe). However it can be reasonably anticipated that there will be many further cases dealing with the fallout of surrogacy agreements at both national level and before the ECHR in the coming years as such agreements proliferate.

For couples who cannot conceive children naturally, the permissive position could best be summarised by asking “why deny people the opportunity to love and care for a child, why deny them the ‘right’ to found a family?”

Counterpointed against claims of a ‘right’ to found a family are the substantive rights of the child in international law and the rights of the birth mother. At the heart of a surrogacy agreement is the planned abandonment of the child by woman who gives birth to it, the child is therefore conceived for the express purpose of being abandoned shortly after birth.

Where there is a commercial element involved, there is the potential of much money to be made. Surrogacy farms are already a reality in the poorer regions of the world, in particular in India. Women carry children for wealthy couples from the West. Some receive compensation for their “services” but the surrogacy industry is largely unregulated and there are increasing reports of human rights abuses such as women being held against their will for the duration of their pregnancy.

In the commercial surrogacy industry newborn children are taken away from their mother almost immediately with no possibility of future access. The parallels with modern slavery and child trafficking are readily apparent. As Europe and the west grapples with the ethical and human rights questions presented by surrogacy, ample evidence already exists that legal acceptance of surrogacy would facilitate a practice which fundamentally exploits the female body and transforms children into a tradable commodity.

On Monday, the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe (PACE) postponed consideration of a draft report on human rights and the ethical issues related to surrogacy. Discussion was postponed pending investigation into the breach of the rules of professional conduct of the rapporteur, Belgian Senator Petra de Sutter, who is also a medical doctor in charge of the Department for Reproductive Medicine at the University Hospital of Gent.

De Sutter’s initial appointment to oversee a report weighing up the delicate human rights issues surrounding surrogacy was a controversial selection to say the least. Not only is De Sutter’s department one of only four institutions in Belgium that offers surrogacy services despite the absence of a framework within the country, but De Sutter has authored academic articles in support of surrogacy and has stated that surrogacy forms part of her political agenda as a Transgender in politics.

The draft version of Dr De Sutter’s report went as far as urging Member States to consider a legal framework for the regulation of surrogacy under the guise that such a framework would reduce human rights abuses. When the Committee does resume consideration of the Surrogacy report, hopefully without the interference of De Sutter, our hope is that the Committee finds that the best way of ensuring the protection of the human rights of children and surrogate mothers is not by condoning the practice, but by recommending a complete ban on it.


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