European politicians fear changing tide in surrogacy debate

The experts and MEP gathered at a conference on surrogacy on Tuesday in the European Parliament in Brussels. According to the organisers, the European Union is taking initiatives to press countries to accept surrogacy. One example is the European Certificate of Parenthood, which, for example, would force governments to recognise the parenthood of gay couples, even though they might not accept adoption by gay couples within their own national borders. But this certificate also opens the door for accepting surrogacy agreements, even though a country might prohibit the practice.

And this practice is gaining popularity, sees Adina Portaru, senior counsel at Christian advocacy organisation ADF International. This is partly because more and more celebrities are resorting to the practice. Recently, for example, there was the case of Spanish actress Ana Obrégon, who, at 68, became a mother to her granddaughter in the United States; her late son’s sperm was conceived into a child via a surrogate mother.

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Apart from the ethical concerns, “surrogacy puts adult desires before the rights of the child”, Portaru also sees many legal problems arising with surrogacy. “The Roman-law principle Mater semper certa est (“The mother is always certain”) is no longer a given in several Member States”, Portaru explains. “Right now, there are nine theoretically combinations of offspring resulting from surrogacy.”

In the case of Obrégon, it seems likely to Portaru that Spain will accept the child when she returns from the US. However, that means that a biological grandmother will also become the child’s mother.

Grey

Although many EU Member States prohibit surrogacy, there is a lot of room for so-called cross-border surrogacy, in which people travel to another country to get their child through surrogacy, just like Obrégon did. Although Italy is currently trying to criminalise this practice for Italian citizens, it remains a grey area legally.

Olivia Sarton, the scientific director of the French children’s rights organisation Juristes pour l’enfance (Lawyers for Children), referred at the conference to the Casablanca Declaration, which calls for the universal abolition of surrogacy. According to her, surrogacy can only be banned at a transnational level to avoid such grey areas. Dr Portaru, meanwhile said that while children’s rights are being discussed when discussing surrogacy legislation, these rights do not seem to be considered when developing new legislation.

Should surrogacy, therefore, be legislated? No, says Portaru. Because when you legislate it, you create room for demand. The Romanian lawyer fears that the demand for surrogacy only will grow further. “At the moment, the size of the surrogacy industry is estimated at 14 billion dollars, while it is estimated to grow tenfold within the next ten years.”

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For the Dutch MEP Bert-Jan Ruissen, it is clear that surrogacy harms women and children and should be banned altogether. But is that possible?

According to Portaru, banning surrogacy across the European Union will be difficult, if not impossible. “That is something only Member States can do. But we see a trend in which the European Union is trying to get certain issues recognised across the Union, such as the cross-border recognition of parenthood.”

But although the European Parliament labelled the practice of surrogacy in 2011 as an exploitation of the female body, the tide is changing within European politics, the Slovak MEP Miriam Lexmann, signals. “I am unsure whether the parliament will approve the same strong wording as in 2011. But if one Member State bans the practice with reference to the charter of human rights, it becomes difficult for other countries not to do so.”