B Explanatory memorandum
by Ms Petra De Sutter, rapporteur
1 Introduction
1. The Committee on Social Affairs,
Health and Sustainable Development appointed me rapporteur on “Human
rights and ethical issues related to surrogacy” on 28 January 2015.
Note In
the past sixteen months, I have presented several versions of a
draft report on the subject to the committee after having organised
a hearing
Note and undertaken
two fact-finding visits.
Note However, the Committee
(narrowly) rejected the amended preliminary draft resolution and
amended preliminary draft recommendation at its meeting in Paris
on 15 March 2016.
2. In view of this experience, I believe that members of the
committee – and probably also of the Parliamentary Assembly as a
whole – are too divided on the human rights and ethical issues related
to surrogacy to find anything but circumstantial majorities in relation
to some of the issues at stake. While I believe that there is a
large majority in favour of prohibiting for-profit surrogacy arrangements,
Note I
no longer believe that such a majority exists on whether or not
altruistic surrogacy arrangements should be allowed, nor on whether we
should encourage States which do allow for-profit surrogacy arrangements
to set minimum standards with a view to protecting surrogate mothers
and surrogate-born children from abuse.
3. I would thus like to focus my report on what we can agree
on, as discussed during our committee meeting in Strasbourg on 20
April 2016: the importance of putting the best interests of the
child first. As I made clear in all versions of my draft report,
I am of the opinion that for-profit surrogacy arrangements should
be prohibited. Most children born of international surrogacy arrangements
are, in fact, born of for-profit surrogate arrangements (estimations
reach 98%-99%). Thus, the need to put the best interests of the
child first dovetails neatly with the proposal to ban for-profit
surrogacy arrangements.
4. This is why I proposed to change the title of the report to
“Children’s rights related to for-profit surrogacy.”
Note I
wanted to make clear that, with this change in title, this is no
longer a report on surrogacy as such, and I will thus take no position
in this report on the ethical issues related to surrogacy in general,
notably in relation to the rights of intending parents or women’s
rights and vulnerabilities, which certainly are of major concern
in relation to surrogacy. I will focus this report on for-profit
surrogacy as it impacts on the rights of surrogate-born children,
with the aim of ensuring that their rights are effectively protected.
5. On 10 March 2016, Ms Caroline Roux (Vice-Chairwoman of the
International Union for the Abolition of Surrogacy, Director of
VITA International) addressed a petition entitled “No maternity
traffic” to the President of the Assembly on behalf of more than
100 000 signatories. The petition
Note was transmitted to our committee by
the Bureau of the Assembly on 26 May 2016 to be taken into account
in the context of the preparation of this report. The petition asks
the Parliamentary Assembly “to condemn in clear terms all forms
of surrogacy as constituting a violation of rights and human dignity”.
6. In light of the explanations given above (paragraphs 1-4),
the preliminary draft resolution I proposed to the committee
Note would have condemned in clear terms all
for-profit surrogacy arrangements, but would not have taken position
on other forms of surrogacy. My personal opinion on altruistic forms
of surrogacy, which concern only an extremely limited number of
children in Europe, is well-known: I do not believe that altruistic
surrogacy should be prohibited (for many reasons
Note),
but it should be limited to gestational surrogacy, be tightly regulated and
be legally available only to resident nationals of the jurisdiction
in question
Note.
Again, since our committee could not reach a clear majority in accepting
nor rejecting this opinion, the present report will not deal with altruistic
surrogacy arrangements.
7. I continue to believe, however, that the lack of a multilateral
legal instrument on parentage related to surrogacy increases the
risk of children’s rights abuses. Before the Hague Conference on
Private International Law (HCCH), and subsequently the Council of
Europe, adopted their conventions on adoption, the situation regarding
international adoptions was as unregulated as international surrogacy
and the resulting legal parentage issues are now. I thus believe
that the Assembly should encourage both Council of Europe member States
and the Committee of Ministers to collaborate with the HCCH.
2 The case against for-profit surrogacy
8. For-profit surrogacy arrangements
are defined by the HCCH in the following way (see appended glossary):
“A surrogacy
arrangement where the intending parent(s) pay the surrogate financial
remuneration which goes beyond her ‘reasonable expenses’. This may
be termed ‘compensation’ for ‘pain and suffering’ or may be simply
the fee which the surrogate mother charges for carrying the child.
This may be a gestational or a traditional surrogacy arrangement.”
9. As the HCCH points out, the defining characteristic of a for-profit
surrogacy arrangement is that the surrogate receives financial remuneration
from the intending parents which goes beyond “reasonable expenses”.
The following countries were identified in a recent report
Note as countries in which such for-profit surrogacy
is legal, performed on a large scale, where there are legal measures
allowing intending parent(s) to obtain legal parentage, and there
is no nationality, domicile or habitual residence prerequisite for
the intended parents. These include: Russia, Ukraine, the US States
of Alabama, Arkansas, California, Connecticut, Illinois, Iowa, Maryland,
Massachusetts, Minnesota, Nevada, North Dakota, Ohio, Oregon, Pennsylvania,
South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin,
as well as India (NB: since 2013, no longer for homosexual couples
Note;
a bill is currently pending before parliament to restrict surrogacy
arrangements to resident national heterosexual couples married for
at least 5 years with health problems and with a close relative
as the surrogate) and Uganda.
10. How many children are born of international for-profit surrogacy
arrangements? Though most agree that the number has been rising
for a while, reliable estimates are hard to come by. The non-governmental organisation
(NGO) International Social Service (ISS) estimates that over 20 000
children are born through surrogacy annually
Note; the BBC, citing official Indian
estimates, reported 5 000 surrogate babies born each year in India
alone
Note. In Ukraine, 396 cycles of IVF with
surrogate mothers in private clinics (State clinics do not offer surrogacy)
were reported to the Ministry of Health on a voluntary basis in
2014. In any case, for-profit surrogacy has an important financial
dimension: in India alone, it is estimated to be worth US$2.3 billion
Note –
of which only about one third usually goes to the surrogate mother
Note, with the biggest
payments seeming to be made to agencies, middlemen and doctors/clinics.
11. Most surrogate mothers in for-profit arrangements, especially
in developing countries, are relatively poor and not well-educated.
They run all the risks of a medically-induced pregnancy and childbirth.
Note Moreover, they are particularly
vulnerable because they are bound to give up the child shortly after
birth – usually, their (full) payment will depend on it. This brings
with it psychological risks, compounded if the surrogate is also
the genetic mother, receives no proper counselling and/or cannot
stay in contact with the child. There is also the risk that the
intending parents will interfere with the pregnancy (placing limitations
on the decision-making of surrogate mothers regarding their health
or even the continuation of the pregnancy), or refuse to accept
and thus abandon a child which is not healthy or otherwise not wanted
anymore.
12. There have been a number of scandals in recent years involving
abuses of surrogate mothers in international, for-profit surrogacy
arrangements – where women in countries such as India or Nepal (which
has since banned such arrangements) have reportedly been isolated
on “baby farms”, their personal freedoms severely curtailed, far
from their families
Note, subjected to practices posing unnecessary
medical risks, paid a pittance (or nothing at all in case of miscarriage
or stillbirth)
Note. But even in countries
such as the United States, some surrogate mothers have reported
being abused by intending parents or intermediaries.
Note
13. One of the most famous scandals, the “Baby Gammy” case, illustrates
well the reasons for which I believe that for-profit surrogacy arrangements
should be forbidden – even though the case is not as clear-cut as
was initially claimed in the media. Australian couple Wendy Li and
David Farnell made international headlines in 2014 when they engaged
a Thai surrogate (reportedly for less than the equivalent of €10 000)
but only took home one of the twins born, Pipah, leaving behind
Gammy, who has Down’s syndrome. The surrogate, Pattaramon Chanbua,
applied for legal custody of Pipah after learning that Farnell had
been jailed for child sex offences nearly two decades ago. The responsible
family court in West Australia ruled in April 2016 that reports
that the parents had “abandoned” Gammy in Thailand (and tried to
access the infant’s trust fund) were untrue and the result of a
“media frenzy”.
Note The judge ruled that the
conflicting accounts between the Farnells and Ms Chanbua came about
because of cultural and language differences, and that it was little wonder
such misunderstandings arose “when a woman’s body is rented for
the benefit of others”.
14. As this case illustrates, for-profit surrogacy arrangements,
in particular international ones, should be prohibited as a violation
of human dignity because of the high, inherent risks of:
- reducing children to commodities
to be bought and sold, and putting them at risk of abandonment or abuse;
- exploiting surrogate mothers, who cannot give their consent
“freely, unconditionally, and with full understanding of what is
involved”.Note This
concern is the most obvious when the surrogate mothers are not native
English speakersNote and/or
are illiterate; but even the pure fact that a “life-changing” amount of
money changes hands can put into question the validity of the consent
given.Note
3 Protecting
children’s rights
15. The United Nations Convention
on the Rights of the Child has guaranteed the following rights to
children for over 25 years now:
a the
right to be registered immediately after birth and the right from
birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents
(Article 7);
b the right not to be separated from his or her parents,
and to maintain personal relations and direct contact with both
parents on a regular basis, except if it is contrary to the child's
best interests (Article 9);
c the right for the best interests of the child to be a
primary consideration (Article 3).
16. It is clear that the child cannot be blamed for being born
out of a surrogacy arrangement; thus, the rights of the child cannot
be curtailed simply because the intending parents flouted national
law when it forbids surrogacy. This is the essence of the European
Court of Human Rights judgments in
Mennesson and
Labassee v. France: the best interests
of the child prevail. In these landmark judgments of June 2014,
the Court, availing itself of the “best interests of the child”
principle, clarified that France had violated Article 8 of the European Convention
on Human Rights (ETS No. 5) in refusing to recognise the legal parent–child
relationship of a genetic father with his surrogate-born children.
However, some questions remain. While France can now no longer presume
that all foreign birth certificates established following an international
surrogacy arrangement are invalid
Note, with all the effects on the
child(ren) concerned regarding legal parentage and citizenship,
Note it is unclear whether it is a violation
of a child’s Article 8 rights to deny him/her the ability to have
his/her legal parentage, established abroad, recognised (or established
again) with a non-genetically related intending parent.
Note The
European Court of Human Rights judgments also seem to leave open
the question of whether the receiving country can also resort to
its adoption procedure instead of recognising the legal parentage established
abroad.
Note
17. Following these decisions, the French Court of Cassation held
that foreign birth certificates of children born under surrogacy
arrangements in Russia in two separate cases of intending (genetic)
fathers, could be transcribed in the civil register. The principle
that the best interest of the child prevails was confirmed in another case
(Paradiso and Campanelli v. Italy)
where there was no genetic link between the intending parents and
the child. In its judgment of 27 January 2015, the European Court
of Human Rights also spelled out that it is necessary that a child
should not be disadvantaged by the fact that he was born by a surrogate
mother.
Note However,
this judgment was appealed by the Italian Government, and is being
judged by the Grand Chamber.
Note
18. On 21 July 2016, the European Court of Human Rights delivered
a judgment in the cases of Foulon v. France and Bouvet v. France, which concerned
the non-recognition in France of the acknowledgment of paternity
of intending (biological) fathers of children born to surrogates
in India. Despite the change in French case law since the Mennesson and Labassee judgments,
legal parentage had not been established (with Mr Foulon having
exhausted all legal options and remedies). The Court thus came to
the same conclusion as in Mennesson and Labassee: the right to respect of
the children’s privacy had been violated by France, and awarded
each child €5 000 in respect of non-pecuniary damage. It is important
to note that all these judgments against France find no violation
of Article 8 of the Convention (right to respect for private and
family life) of the applicant parents, only of the surrogate-born
children. One further case against France is currently still pending before
the European Court of Human Rights: Laborie
v. France concerns the non-recognition of Ukrainian birth certificates
in France with respect to two children born to a surrogate.
19. It is actually not that easy to apply both the Convention
on the Rights of the Child and the European Court of Human Rights
judgments in practice, because, for example, the definition of who
is a child’s parent depends on the legal definition in national
law, and this can differ between the different national jurisdictions
involved. Theoretically, Article 7 could be interpreted in a way
that it applies to maximum three “mothers” and three “fathers”:
the mother who has born the child (the surrogate mother), the mother
who is the genetic mother (the egg donor), the intending mother,
the genetic father (the sperm donor), the intending father, and
the husband of the surrogate mother. The child born of such a surrogacy
arrangement could be interpreted as having the right to know and
to be cared for by all these six people – which, of course, rarely
happens in practice, in particular in international surrogacy arrangements
of the for-profit kind.
20. As the HCCH has pointed out,
Note “States’
approaches to the establishment and contestation of legal parentage,
particularly in the context of children born by means of assisted
reproductive technology (“ART”) and international surrogacy arrangements,
vary significantly. Where children are connected with more than
one State or move cross-border, the application of different rules
on jurisdiction, applicable law and the international circulation
of foreign public documents (i.e., birth certificates, civil status
documents) and judicial decisions (i.e., rules on recognition) has
led to situations of uncertain and “limping” legal parentage”.
Note
21. In practice, when the legal parentage of a child needs to
be decided in a cross-border surrogacy case, the HCCH has noted
that “national and regional developments appear to be directed towards
securing continuity in the civil status of children”.
Note This
is because there is an important human rights dimension to the status
of children: “The unity, stability, and continuity of an individual's
personal status is of a social interest. A certain civil status
is a constituent element of a child’s personal identity.”
Note In
addition, cross-border surrogacy can also be a source of statelessness
for children, in violation of Article 7 of the Convention on the
Rights of the Child.
22. However, even if, in practice, most countries (including jurisdictions
which prohibit for-profit surrogacy arrangements) manage to find
solutions for children born abroad of such arrangements eventually,
the solutions are not always ideal, and not necessarily in the best
interest of the child. What exactly is in the child’s best interest
is also open to dispute: is it in a child’s best interest, for example,
to be sent back to a foreign surrogate mother who does not wish
to care for the child in a surrogacy-friendly jurisdiction, or to
stay with the intending parents who do wish to care for the child
in a jurisdiction where surrogacy is prohibited, or to be taken into
care by the State in either of the jurisdictions? In any case, being
abandoned by the intending parents (in particular, if the surrogate
mother refuses to care for the child as well) because the child
is not healthy or otherwise not wanted anymore (for example, because
the intending parents have separated), is definitely not in the
child’s best interest.
Note
23. The child’s vulnerability in all this is very clear. Whether
children born of surrogate mothers also run psychological risks
due to the lack of maternal attachment of the surrogate mother during
pregnancy, and the “abandonment” straight after birth, is disputed,
as scientific studies are few and far between, and often plagued by
inherent bias.
Note However, in
some international surrogacy cases, courts are already unable to
trace surrogate mothers a few months after the birth of the child(ren)
concerned – it is thus highly unlikely that all children born as
a result of international surrogacy arrangements will be able to
trace their genetic and birth origins later in life, which is not
only a violation of the child’s right to know his/her origins, but
can also have negative psychological (and even physical
Note) repercussions on the child.
4 Conclusions
and recommendations
24. The vast majority of for-profit
surrogacy arrangements are across State borders (for example in
the United States) or across national borders, usually involving
intending parent(s) from jurisdictions in which for-profit surrogacy
is prohibited and surrogates in jurisdictions where for-profit surrogacy
is legal and where there are legal measures allowing intending parent(s)
to obtain legal parentage. The reasons why intending parent(s) “vote
with their feet” in this way are multiple: infertility tends to
be the most prevalent one.
Note The alternative of adoption is
not always available to these intending parents, for example because
of national laws and regulations which set conditions they cannot
fulfil (such as nationality requirements, age limits, the need to
be married, in a heterosexual stable relationship, etc.). However,
some intending parents also choose surrogacy over adoption because
they want their “own” child, which is going to be genetically related
to at least one of them; because they have no realistic prospect
of being able to adopt a child in a relatively short time frame;
or because they fear that they may not pass or would indeed not
pass adoption screenings.
25. But what does this mean for the child(ren) born of such cross-border
surrogacy arrangements in practice? Such children face various risks
from multiple actors (intending parents, surrogate mothers, third parties,
States in which the children are born, States to which the children
are connected via their intending parents), as noted above:
- falling victim to child trafficking;
- falling victim to abandonment and/or abuse;
- becoming stateless or being left with “limping” parentage;
- having their right to know their origins violated, with
the attendant possible negative psychological (and even physical)
repercussions.
26. The application of the “best interest of the child” principle
by States confronted with individual children born abroad of international
for-profit surrogacy arrangements generally leads to acceptable
– though not expeditious – outcomes even in States which prohibit
some or all forms of surrogacy domestically, via adoptions, parental
orders, humanitarian leave to remain, etc. However, there is no
legal certainty as these States do not want these case-by-case solutions
to be seen as an endorsement of international surrogacy arrangements
which may lead to their further proliferation.
27. As I have already underlined in previous versions of this
draft report, I believe that there is no “right to a child”, but
that children have rights that need to be respected
Note.
And these rights need to be respected by all actors, including States.
I do understand why it is so difficult to harmonise national laws
in a way that respects children’s rights to legal parentage without
de facto legitimising cross-border
for-profit surrogacy arrangements, which would
in fine not be in these children’s
best interest either.
Note
28. The ideal way to solve this problem would, of course, be for
all countries to prohibit for-profit surrogacy, which comprises
an estimated 98%-99% of all surrogacy arrangements. Indeed, I have
proposed this solution all along. The European Parliament included
a paragraph in a resolution of December 2015
Note calling for the prohibition of
gestational, for-profit surrogacy. Surprisingly, however, the European
Parliament only called for the prohibition of gestational for-profit
surrogacy, not traditional for-profit surrogacy (which I personally
consider the worst form of surrogacy). It is for this reason that
I consider that member States should prohibit all forms of for-profit
surrogacy in the best interest of the child.
29. However, it is a fact that, due to the absence of a binding
legal instrument on the matter, each country is free to decide for
itself which stance it wants to take domestically. In other words,
it is unlikely that all countries which currently allow for-profit
surrogacy and practise it on a large scale (including two Council
of Europe member States, Ukraine and Russia), or the ones where
it is practised illegally but tolerated (as in Greece
Note) will decide to prohibit for-profit
surrogacy just because the Parliamentary Assembly of the Council of
Europe has so recommended. It seems even more unlikely that such
countries would agree to be bound by a legal instrument prohibiting
for-profit surrogacy, whether such a legal instrument were developed
at a European or international level. Since there is little, if
any cross-border movement of surrogate-born children between countries
which prohibit for-profit surrogacy, a legal instrument prohibiting
for-profit surrogacy would have no effect on children’s rights.
30. In these circumstances, I believe that, as a minimum requirement,
those countries which continue to allow for-profit surrogacy should
be required to only accept resident nationals of their own State
and country for surrogacy arrangements. Indeed, there is already
an interesting trend in this direction which has been noted by the
HCCH
Note. If this requirement were included
in an international legal instrument to which both countries prohibiting
and countries allowing for-profit surrogacy were bound, it would
have the effect of reducing surrogacy arrangements to less than
1%-2% of their current number, and avoid cross-border movement of children
born of for-profit surrogacy arrangements altogether, thus effectively
protecting these children from violations of their rights linked
to parentage and nationality.
31. In conclusion, I thus propose that the Assembly recommend
that:
- member States prohibit
all forms of for-profit surrogacy in the best interest of the child;
- member States and the Committee of Ministers collaborate
with the HCCH with a view to including, as a minimum requirement,
a restriction of access to surrogacy arrangements to resident nationals
of their own State and country in any multilateral instrument that
may result from the HCCH’s parentage/surrogacy project;
- member States take care not to violate children’s rights
when taking measures to uphold public order and discourage recourse
to surrogacy arrangements;
- the Committee of Ministers explore the desirability and
feasibility of drawing up European guidelines to safeguard children’s
rights in relation to for-profit surrogacy arrangements.
32. Finally, there are many ways in which most of our member States
could make adoption a more viable alternative to surrogacy, thus
providing a child in need with loving parents and fulfilling infertile
couples’ desire for a child – the best outcome for all.
