Surrogacy: Is the European Court of Human Rights Pushing States to Lower their Moral Objections?

Abstract
This article explores the topic of commercial surrogacy as presented in Mennesson v.France and Paradiso and Campanelli v. Italy. In these two cases, two couples become intended parents through the use of cross-border surrogacy specifically in California and Russia. They seek recognition of the legal parent-child relationship in their home states. The role of the ECtHR has been decisive for the practice of surrogacy. On one hand, ECtHR has remained superficial in not tackling problems like the commodification of children or the exploitation of women. The court failed in distinguishing between commercial and altruistic surrogacy nor between legal motherhood and legal fatherhood. On the other hand, the court recognized that the principle of the best interests of the child prevails over public policy considerations for the matter of surrogacy. It is questionable, IF states might be pushed by the ECtHR to take a more liberal shift towards the matter of surrogacy in the domestic level and HOW their practices might change for the recognition of this practice.

Introduction

In this comparative analysis we will find two key decisions concerning the practice of cross-border surrogacy in front of the European Court of Human Rights: Mennesson v. France and Paradiso and Campanelli v. Italy. The court has used the evolutionary interpretation that serves to go above the original intention of the draft of the convention in order to give life to new matters such as surrogacy. Nevertheless, the various approaches of the court show a double-standard attitude for this practice.

Firstly, we find the obligation of the state to recognise cross-border commercial surrogacy agreements faced by its freedom to outlaw surrogacy. As a consequence of the ECtHR jurisprudence, it is expected from states to weaken their moral objections and recognise the parent-child relationship established in the foreign jurisdiction when it comes to situations in which their citizens break national laws by the use of commercial surrogacy abroad.

Secondly, in both cases ECtHR has not mentioned any arguments for the situation of the genetic mother of the children, nor that of the biological mother (the surrogate). Instead, these two individuals have been reduced to an instrumental function and have been ignored to their person. The topic of surrogacy has been regarded from the point of view of the Western couple, however one main problem, the one of the exploitation of women has not been tackled by the court.

Thirdly, the court does not distinguish between altruistic and commercial surrogacy. There are various issues raised by the concept of commercial surrogacy such as the commodification of children and exploitation of women. The ethical concerns in the light of human rights abuses are very disturbing specifically in developing countries as countries of origins. Not having distinguished between commercial v. altruistic surrogacy, it can be seen that the decision of the court can be regarded as a form of acceptance of commercial surrogacy.

Lastly, the court observed in both decisions that the principle of the best interests of the child prevails over public policy considerations for matters of surrogacy and adoption. The question remains opened: Should the ECtHR have the authority to interfere with the choice of the state of not allowing its citizens to reproduce through commercial surrogacy?

The case of Mennesson v. France

Two French nationals, Mr Dominique Mennesson (first applicant) and Ms Sylvie Mennesson (second applicant) lodged a case against the French Republic under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Case of Mennesson v. France, Application n. 65192/11, Judgment 26 June 2014). The couple were unable to conceive and have a child on their own even after trying the procedure of IVF (in vitro fertilisation) with their own gametes. For this reason they decided to try the IVF with the gametes of the male applicant and the egg of a donor and later implement the fertilised embryos in the uterus of another woman. They decided to make a gestational surrogacy agreement in California where this process is legal. The supreme court of California ruled that the first applicant would be the “genetic father” and the second applicant the “legal mother”. Based on the judgement, they had to be recorded in the birth certificate as father and mother. The surrogate mother was found to be carrying twins and they were born on October 25th of the year 2000 and in their birth certifications the first and second application were stated as mother and father. Their request of trying to register the birth certificates of the twins in the French Consulate in Los Angeles was then rejected on the grounds that it could not be proved that the second applicant had given birth to the children. For this reason the French authorities suspected a surrogacy arrangement. The four applicants managed to return in France since the twins were issued with US passports in which the first and second applicants were named as their parents.

Judgment of the Créteil tribunal de Grande Instance of 13 December 2005, judgment of the Paris Court of Appeal of 25 October 2007 and judgment of the Court of Cassation of 17 December 2008

The Creteil public prosecutor in 2003 observed that the agreement between the surrogacy mother and the first and second applicant were considered null and void in accordance with the public-policy principle that the human body and civil status are inalienable. The judgement of the Supreme Court of California was contrary to the French concept of international public policy and of French public policy and it could not be executed in France. For this reason it could not be recognised as a decision in the French Republic. In 2005, the Créteil tribunal de Grande Instance declared the action inadmissible based on Article 47 of the French Civil Code which allowed the public prosecutor to verify the validity of the certificates in any respect and to reject any request for registration that would render them binding in France. The public prosecutor’s office appealed to the Paris Court of Appeal. The court also considered the action of the public prosecutor inadmissible as a matter of international public policy.

Paris Court of Appeal 18th of March 2010

The court gave three conditions for the recognition of a decision delivered by a non-French court that France is not bound by any convention: the indirect jurisdiction of the foreign court based on the connection between the court and the case; compliance of the merits and procedure with international public policy; and absence of circumvention of the law.

Any agreement concerning reproductive or gestational surrogacy is null and void according to Article 16-7 of the Civil Code, whose provisions deriving from Law no. 94 653 of 29 July 1994, and not amended by Law no. 2004-800 of 6 August 2004 as a matter of public policy. The entries in the French central register of births of the US birth certificate that names the second applicant as the mother of the children must be annulled. To add on, the court said that the applicant do not have justifiable grounds for arguing a violation of provisions laid down in international conventions and domestic law. The concept of the child’s best interests cannot validate ex post facto a process whose illegality is established not only in positive law but also in the case-law.

Court of Cassation April 6th 2011

The applicants argued that the children’s best interest based on Article 3 § 1 of the International Convention on the Rights of the Child has been disregarded and this reflects a breach of their right to a stable legal parent-child relationship and a violation or Article 8 of the Convention taken alone and in conjunction with Article 14. Furthermore, the applicants submitted that the decision of a foreign court that recognises the legal parent-child relationship between a child and a couple who lawfully contracted an agreement with the surrogate mother was not in violation with international public policy, which should not be confused with domestic public policy. Not allowing a foreign decision to take legal effect in France on the grounds of international public policy could bring to infringing a principle, a right or a freedom guaranteed by an international convention ratified in France.

In Wagner and J.M.W.L v. Luxembourg the “effective family life” and “de facto family ties” in terms of Article 8 of the Convention were recognized for the relationship between a single mother and the child that she had adopted in Peru. To notice is the fact that the woman had gone abroad with the aim of searching for a legal system that would allow her to obtain what her own French legal system refused her of doing. Using the same legal reasoning, the legal relationship that was lawfully created in the case of Mennesson v. France could not be prevented from producing the relevant legal effects where it concerned an effective family set-up. The advocate general observed that the refusal of registering the birth details of the twins could disrupt the family life. This is based on the fact that the family is split into two: the applicants as French nations and the foreign children on the other side. The Court of Cassation observed that it is “contrary to the principle of the unavailability of the status of persons, an essential principle of French law, to give effect with regards to kinship, to a convention on pregnancy for someone else” or invoke the apparent status (possession d’état) to establish kinship. About the refusal of transcription the court said, “which does not deprive children of the maternal and paternal relationship that the Californian law recognizes them, and does not prevent them from living with the Mennessons in France, does not violate these children’s right to respect for private and family life under Article 8 of the Convention (…) nor the best interests of the children guaranteed by Article 3 Para. 1 of the Convention on the Rights of the Child” (Gregor, 2014).

Violation of Article 8 of the Convention

The applicants complained a violation of the right to respect for their private and family life as guaranteed by Article 8 of the Convention. Questionable is, whether the interference of the French authorities when recognising the family tie between the applicants is in accordance with the law. According to the case law of the Court, “in accordance with the law” in the light of Article 8 §2 puts as requirements not only that the measure should be based on the domestic law, but also it refers to the quality of the law in question. The court observed that there has been no evidence presented that a more liberal practice used to work in France for cases of surrogacy agreements and that it concluded in a similar case that such an agreement contravened the principles of inalienability of the human body and civil status. In the view of the court, the applicants should have been aware that there was at least a substantial risk that the practice would not be recognised by the French courts. Based on the French law accordingly the reflected ethical and moral principles according, the human body could not become a commercial instrument and the child be reduced to the object of a contract. Which was the legitimate aim? The interference pursued two of the legitimate aims listed specifically in the second paragraph of Article 8 of the Convention namely 1. The protection of health and 2. The protection of the rights and freedoms of others (Fenton-Glynn, 2015).

The applicants on the other side expressed that the state parties had a wide margin of appreciation for their legal provisions in surrogacy since there is no common European approach. The courts referred to the child’s best interest’s theory as in Wagner and J.M.W.L which has the effect of restricting the margin of appreciation of the States. Furthermore the applicants states that this measure had direct disproportionate consequences that affected the third and fourth applicants. Not recognising the parent-child relationship with the first two applicants, the children directly did not have French nationality. This means, they had no French passports and no valid residence permits and might have it impossible to obtain French nationality and the rights that come with it such as voting and inheriting the estate of the first and second applicants.

To add on, in the case the first applicant would die or they would separate, the second applicant would be deprived of any rights in respect of the children. The applicants referred to the report of Conseil d’État of 2009 on the review of bioethical laws which indicated that “in practice, families’ lives [were] more complicated without registration, because of the formalities that had to be completed on various occasions in life”. Another point submitted by the applicants was the ruling of the Court of no violation of Article 8 in the cases of abortion abroad. Even though domestic law prohibits this practice, it did not prevent individuals from going abroad and choosing a state that supports this practice and allows it.

The court then examined if the interference had been “necessary in a democratic society”. It explained that when decisions connected to surrogacy gave the states a wide margin of appreciation. This is due to the fact that the topic of surrogacy involves with ethical issues and in this matter there is no common consensus between the states in Europe. Nevertheless, the margin of appreciation is narrow when it came to parentage. This term includes a key aspect of individual’s identity. To this point, the court proved whether the measure was proportional and the interests were put in a balance. On the one side there is the interest of the state and on the other the interests of the applicants concerned. In particular consideration the court referred to the prevalence of the best interests of the children involved. This theory builds a fundamental principle of EU states.

With Regards to Family Life

With regard to the first and second applicants’ family life, the court noted that the applicants did not demonstrate that they had been prevented from enjoying their right to respect for their family life in France. The family of four had been able to live in France shortly after the twins were born and there was nothing to suggest that there was a risk for them to be separated by the authorities because of their situation under the French law. The court concluded that the practical difficulties faced by the applicants did not exceed the limits imposed by respect for family life. The interests of the first and second applicants and those of the state had been put into a fair balance and their right to respect for their family life was respected. Article 8 has not been violated from the point of view of respect for family life.

With Regards to Private Life

With regard to the right to respect for the private life of the twins, the court observed that the children were in a state of legal uncertainty. The twins had been identified by the French authorities as the children of Mr and Mrs Mennesson in another country, however under French law this recognition was not done. The court raised questions about the identity of the children within the French society. Even though the father of the children has the French nationality, there were various uncertainties for them to obtain the French nationality and create their own identity. Furthermore, in the case of the death of Mr and Mrs Mennesson, the twins would inherit only as legatees which puts them under a less favourable position in terms of their inheritance rights. The refusal of the recognition of a parent-child relationship (Case of Mennesson v. France, Application n. 65192/11, Judgment 26 June 2014) according to the French law and its effects extended this way from the parents to the children born following surrogacy. Their right to private life has been significantly affected as they face serious obstacles in establishing the essence of their identity.

Furthermore, the court recognizes the importance of legal tie established by the children and the biological father in the case. It is not in the best interests of the child to be deprived from such a legal tie knowing that biological parentage is an important component for the identity of the individual. This legal tie was not acknowledged when the request for the birth certificate was made. There is a clear contradiction based on the fact that the children have been recognized as the children of the applicants elsewhere but not in the French legal system, however in practice they are treated with practical tolerance which in itself should not violate the identity of the children. By preventing the recognition of the children’s legal relationship with their biological father, the French Republic has overstepped the permissible margin of appreciation. The court decided that the interest children born through surrogacy is above society’s interest to forbid this practice (Gregor, 2014). The children’s right to respect for their private life has been infringed, in breach of Article 8.

The Courts’ Activism in Liberalising Prohibitions as in Mennesson v. France

The Court and Ethical Choices

It has become a common phenomenon for the European Court of Human Rights to make rulings on matters that are far off from the initial scope of the Convention. For this, the courts use the evolutionary interpretation that serves to go above the original intention of the draft of the convention in order to give life to new matters such as surrogacy. The court has extended the interpretation of Article 8 that guarantees respect for private and family life. Hereby we can identify individual autonomy as the new fundamental value.

On the other side, the court ruled in the case of Mennesson v. France in national ethical choices. There have been cases such as bioethics and family issues in which the Court has censured ethical choices which suggested the prohibition of a certain practice for the intention of imposing a more liberal position. This happened in Austria with the refusal to allow same sex couples co-parental adoption or in the case of Ireland with the prohibition of abortion although confirmed three times by referendum. The ultima ratio in these cases had a more philosophical or ideological identity rather than judicial. In Vallianatos and others v. Greece the court observed that when a European state legislates on family issues, it “in its choice of means […], must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (ECHR, 7 Nov 2013, n°29381/09 and 32684/09, Para. 84). This way, the Court has a way of ensuring that European States adapt their legislation (in their own perception) with the evolution of values.

Remaining Difficulties for Surrogacy

In the case of Mennesson v. France, the case has not mentioned any points when it comes to the situation of the genetic mother of the children, nor that of the biological mother (the surrogate). Instead, these two individuals have been reduced to an instrumental function and have been ignored to their person. It seems that the court did not tackle correctly the problem of surrogacy, or maybe this was an intentional choice.

The topic of surrogacy has been regarded from the point of view of the Western couple, however one main problem, the one of the exploitation of women has not been tackled by the court. A change of perspective will be needed in the subsequent cases that concern children born from surrogacy in countries like Ukraine (Laborie v. France, nr. 44024/13; D. & R. v. Belgium, n°29176/13), India (Foulon v. France, nr. 9063/14) and Russia (Paradiso and Campanelli v. Italy, nr. 25358/12). The Court of Human Rights will have to take under the consideration the commercial nature of surrogacy and how it is connected with prostitution. It appears that in the judgement of Mennesson v. France, the court has tried to escape the moral nature of this case. Based on the words of the court, the ruling of the ECHR is not on the choice of ethics of the French legislator, BUT the court only: verifies if the national judge has duly taken into consideration the need to conserve a proper balance between the interest of the community in order that its members submit to the choice made democratically and the interest of the applicants – including the best interest of the children – fully to enjoy their rights to respect for family and private life” (ECHR, 26 June 2014, n°65192/11, Para. 84).

This way, the court shows that the legitimate interest of the French authorities is the formal respect of the law, and not the values and interests behind the positive norms. On the other side, France puts into a balance the competing interests of the adult applicants, the children and women involved in the case. However, the balancing of interests based on the French law cannot be reduced to an opposition between a formal respect of the law and that of the family situation (Gregor P. , 2014).

The practice of surrogacy, as observed is tolerated by the ECHR. Nevertheless, this practice is in violation with well-established standards of international law, specifically we find provisions of conventions in matters of international adoption, the Convention on the Rights of the Child and its Optional Protocol on the sale of children (Trimmings, 2013). The Hague Convention on the protection of children and co-operation on international adoption (Hague Conv. 29 Mai 1993 art. 4) and the European Convention on the adoption of children (27 November 2008, art. 5) require that the consent of the parents should not have been obtained in return for money or compensation of any kind and that the consent of the mother should have been given only after the birth of the child. The Optional Protocol defines the sale of children which applies perfectly to surrogacy as any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration (CRC optional protocol 25 Mai 2000, art. 2 a).

Reproductive tourism represents a market that has a value of several billions of dollars which has already found its place in poor countries. It is questionable, what will happen when children born out of surrogacy will be old enough to express themselves and prosecute those who bought them and sold them, those who intentionally deprived them partially or totally of their biological family link (Hougue, 2015). 

The Case of Paradiso and Campanelli v. Italy

Case Facts

This case concerns similarly the refusal of the registration of a Russian birth certificate of a child born through surrogacy in Russia by the Italian authorities and subsequently the removal of the child from the intended parents. The intended parents are two Italian married nationals that made a surrogacy agreement with a clinic in Moscow for surrogacy, paying 49,000 EUR for the “service”. In the present case, the child born from surrogacy has no genetic connection with the intended parents and the intended parents had not exhausted the available domestic remedies to obtain the legal parent-child relationship established in Russia recognized in Italy (Welstead, 2015). The day that the child is born, the surrogate mother gave her written consent that the child would be registered as the son of the applicants. In this document there was no indication that the child was born through surrogacy. The child was issued with travel documents and the intended parents were allowed to remove the child to Italy. When back in Italy, the intended parents tried to register the birth of the child in the municipality of the region. After it was proved that Mr Campanelli was not the genetic father of the child, their request of registration was refused and the Youth Court observed that the child would immediately have to be removed by the intended parents not only based on the genetic relationship lack but also because the authorities expressed their doubts on the capabilities of the intended parents in growing a child as they had acted in violation of the law.

On February 28th 2012 the Campobasso Court of Appeal took the decision of removing the baby from the intended parents. The baby was taken to a children’s home first and later to a foster family and during this time no information was given to the intended parents concerning the child’s location. The Italian authorities worked on this case as an international adoption case and not as a case of surrogacy. However, the Youth Court observed that the adoption procedures could not be followed by the applicants as they are not the child’s parents nor members of his family. Mr and Ms Campanello made a complaint in front of the European Court of Human Rights based on the violation of Article 6, 8 and 14 of the Convention. Their right to respect for private and family life has been violated as the legal parent-child relationship established based on the Russian documents had been refused and the child was removed from the intended parents.

Decision of the ECHR

The court observed that the applicants had not exhausted domestic remedies as they did not appeal to the Italian court of cassation regarding the refusal by the authorities to register the child’s birth certificate. The court decided to dismiss the attempt of the applicants to bring an action on behalf of the child born out of surrogacy in Moscow based on the fact that there is no biological tie with him or any authorisation from a lawful representative of the child. For this reason, the applicants do not have legal standing in representing the child’s interests in judicial proceedings.

Article 8 was taken into consideration for the second complaint considering that there had been a de facto family life between the child and the applicants. The court observed that the removal of the child did not violate the law and the legitimate aim followed by this action was to prevent disorder and protect the rights and freedoms of the child. The court concluded that the actions of the Italian authorities were not necessary in a democratic society. The removal of the child should only be done under specific circumstances as an extreme measure. This measure is justified if it supports the aim of protecting a child who is faced with immediate danger. The Court noted that a high standard had been set in previous cases of the ECtHR regarding this matter. Specifically it highlighted the case of Wagner, where the national authorities refused to recognise the parent-child relationship established abroad through adoption on the grounds of public policy. Nevertheless, the situation in Wagner is different from the present case as family life had not been interfered with through a physical removal of the child from the adoptive mother. The Court criticized the legal reasoning of the Italian Court that the intended parents seen as suitable to adopt in 2006, were later held unfit as prospective adopting parents on the grounds that they had breached domestic adoption laws. An export report would have been needed in this decision, but the Italian courts never asked for it.

One of the consequences of removing the child from the parents was also leaving him without any formal identity for over two years. Article 7 of the United Nations Convention on the Rights of the Child says that no child should be ‘disadvantaged on account of the fact that he or she was born to a surrogate mother, especially in terms of citizenship or identity (United Nations, Convention on the Rights of the Child, 20 November 1989) For this reason, we find a violation of Article 7 for the lack of identity of the child until 2013. The court concluded that the Italian authorities did not strike a fair balance between the interests of the intended parents, the interests of the state and to take into account the child’s best interest principle. However, this reasoning did not mean that Italy would be obliged to return the child in the arms of the intended parents, as the child had developed emotional ties with the foster family during his stay there.

Comparative Analysis of the Decisions

Mennesson v. France and Campanelli and Paradiso v. Italy differ based on two main aspects. Firstly, in the case of Mennesson, we can find the genetic link between the children and one of the intended parents. This factor is not present in the Paradiso case where neither of the parents are connected genetically to the child. Secondly, in the Paradiso case the intended parents had not exhausted the available domestic remedies for their situation in order to seek recognition of the legal parent-child relationship. The ECtHR refused for this reason to rule on this aspect of the case.

Biological Parentage and Genetic Link

The Court did not rule on the question of the recognition of the legal parent-child relationship established by surrogacy which involved a genetically unrelated intended parent in the Paradiso case. On the other hand, Mennesson v. France suggests that the identity of a person is intrinsically connected with biological parentage. For this reason, it is not in “the interest of the child to deprive him or her of a legal relationship of this nature”. The chamber observed that the right to respect for private life under Article 8 of the Convention is linked to the right to establish one’s identity. Based on the judgment, the state is obliged to recognize the legal relationship established by surrogacy between the child and the biological parent. Sadly, the court made no reference to the legal parentage of the genetically unrelated intended parent. An opened question remains: in order to prevent a violation of Article 8, is a state obliged to legally recognize a parent-child relationship established abroad between a child born through surrogacy and a genetically unrelated parent? (Trimmings B. &., 2016). Another opened question would be: How would the judges decide on this case, IF the genetically related intended parent would be the mother of the child and NOT the father such as in the case of Mennesson v. France? Also to this point, the court did not distinguish between legal motherhood and fatherhood. In the case of Paradiso/Campanelli, the Court touched the question of the genetic link. It held that a genetic link was not a necessary condition to fulfil “family life” in the light of Article 8.

The court did not clear IF for the purpose of Article 8, the relation between the child and the not-genetically connected intended parents who had acted as parents and cared for the child for the first nine months is enough to be recognized as “family life”. It is questionable, which is the notion of a de facto family in the light of Article 8 ECHR. Should it be in the hands of ECtHR to effectively create “family rights” for couples in Europe who want to become parents through the process of surrogacy without having a genetically connection to the baby? (Beaumont, 2016). Paradiso/Campanelli represent a difficult situation in which the parents took care of the baby for the first months of his life and they had as well the intention to become parents. However, this was not accepted as a de facto family of Article 8 ECHR. It comes in mind the question, if this matter falls outside the scope of the Convention and the countries should be allowed to have different views on it (Garcia, 2015).

Obligation to recognize cross-border commercial surrogacy agreements and freedom of the state to outlaw surrogacy

According to the opinion of judges Raimondi and Spano in Paradiso/Campanelli, the approach of ECtHR compels the states to accept the effects of cross-border commercial surrogacy arrangements and puts as a requirement “an immediate danger” to remove the child from the care of the intended parents. The consequences of the decision Mennesson v. France can be various. States might be pushed to take a more liberal shift towards the matter of surrogacy in the domestic level and they might have to make changes for the recognition of legal parentage.

Mennesson v. France suggests that states will change their practices for the recognition of legal parentage when a child is born abroad through surrogacy. In states where the jurisdiction does not recognize altruistic and commercial surrogacy, in the case of legal parentage when at least one of the parents is the biological parent established through cross-border surrogacy will be recognized whilst all other domestic surrogacy agreements will remain illegal with no effects regarding legal parentage (Trimmings B. &., 2016). This creates a form of a double standard approach for surrogacy. It suggests the idea that there will be a discriminatory treatment of children born through surrogacy cross-border and those born through domestic surrogacy agreements. This represents the second step. In order for the states not to discriminate children born through any type of surrogacy, they will gradually shift to accepting this practice and give up on their restrictive approaches to surrogacy (Trimmings, 2013).

To reflect this, we can take the case of Spain in 2010 when the Dirección General de los Registros y Del Notariado (DGRN) that has the function of an administrative body in charge of the Civil Register made a resolution for procedures that included cross-border surrogacy (Amoros, 2013). Before this resolution, legal parentage established by a foreign judgment would be only registered if this judgment has been formally recognized by a Spanish court. Based on the resolution, the recognition of foreign judgment is not anymore necessary (Trimmings, 2013). However, the resolution puts certain conditions that need to be fulfilled in order for the foreign judgment to be recognized. In February 2014, the Spanish Supreme Court observed that the civil registry needs to examine the authenticity of the birth certificate and also probable violations of the Spanish public policy. The court said that a balance has to be met between the best interests of the child and the interests of the Spanish State to prevent the commodification of children and women (Pedreno, 2014). Nevertheless, based on the circular stating, DGRN instructions are applied again by registries even if there is a contradiction with the decision of the Supreme Court.

Another example is Germany, where the Federal Court of Justice (Bundesgerichtshof) overturned the decision of the lower court that recognized a Californian judgment which entitled a gay couple as the legal parents of a child born from surrogacy in California (Bundesgerichtshof, No XII ZB 463/13, 10 December 2014). The court relied on Article 8 of the Convention and the case of Mennesson v. France. By doing this, it observed that it was on the best interests of the child for the legal parentage established in the USA to be recognized.

Altruistic Surrogacy versus Commercial Surrogacy

In both of our decisions, we deal with commercial surrogacy agreements. Commercial surrogacy generally refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses. The alternative to commercial surrogacy is altruistic surrogacy, in which a woman volunteers to carry a pregnancy for intended parents without receiving any monetary compensation in return. ECtHR did not make any differentiation between these two types of surrogacy. In some states, altruistic surrogacy is allowed BUT commercial surrogacy agreements are banned based on ethical grounds in order to prevent the commercialization of conception. Hereby we can think of the United Kingdom. Other states and their jurisdictions ban both types of surrogacy.

One can think that as a consequence of the ECtHR jurisprudence, it is expected from states to weaken their moral objections and recognize the parent-child relationship established in the foreign jurisdiction when it comes to situations in when their citizens break national laws by the use of commercial surrogacy abroad. The question remains open: Should the ECtHR have the authority to interfere with the choice of the state of not allowing its citizens to reproduce through commercial surrogacy?

There are various issues raised by the concept of commercial surrogacy such as the commodification of children and the exploitation of women. The ethical concerns in the light of human rights abuses are very disturbing specifically in developing countries as countries of origin. Not having distinguished between commercial v. altruistic surrogacy, it can be seen that the decision of the court can be regarded as a form of acceptance of commercial surrogacy. India has been seen as the main destination for a long period of time as the global commercial surrogacy market. Nowadays we can find a pending legislation which, if adopted, will create various restrictions on the cross-border surrogacy market. For example, surrogacy for foreigners in India will be banned. The only exception would be for People of Indian Origin, Non-Resident Indians and foreigners married to Indian citizens: “Overseas Citizens of India”. Gay couples as potential intended parents will be excluded from this practice and it will be limited for married couples only (Indian Assisted Reproductive Technology (Regulation) Bill (2014), Chapter VII, paras 60(11)(a) and 60(21)(a)).

Best Interests of the Child versus Public Policy

In both decisions, we can notice that the principle of the best interests of the child prevails over public policy considerations for matters of surrogacy and adoption.

For the case of Paradiso, the court examined the principle of best interests of the child in connection to the physical removal of the child from the intended parents. The court observed that the argument of public policy cannot give unrestricted power for the state to take over the principle of best interests of the child. This is irrespective of the fact whether the intended parents and the child have a genetic link between them. It was concluded that through the principle of best interests, Article 8 was violated with the physical removal of the child. However, the child could not be returned to the intended parents as he had created an emotional relation with the foster parents.

In Mennesson v. France, the best interests of the child were examined when the court focused on the compatibility of public policy considerations and Article 8 right to respect for private and family life. The court observed that the principle of child’s best interests must prevail or “guide any decision”, even when it comes to the recognition of legal parenthood. In Mennesson v. France, Article 8 was infringed by the French authorities. The court concluded that ‘having regard to the importance to be given to the child’s interests when weighing up the competing interests at stake’, their right to respect for their private life was violated.

Conclusion

Based on Mennesson v. France and Campanelli and Paradiso v. Italy, we have noticed that the approach of the ECtHR has been mainly focused on the method of the recognition of the relationship parent-child. As seen in the comparative analysis, this approach can in no way tackle the whole issue of surrogacy. There is a clear conflict of rules that has to be solved in order to regulate the cross-border surrogacy market. It is not enough to simply tackle the topic of legal parenthood, but also protecting those involved while keeping in mind that the process of surrogacy includes many actors.

Taking the example of the 1993 Hague Inter-country Adoption Convention that is based on the need to regulate international adoptions in order to protect the actors of the procedure, specifically the children and the principle of cooperation between the state of origin and the receiving state, it can be suggested that a framework for international cooperation in terms of surrogacy is needed. In a multilateral approach there is a need for an international convention on surrogacy that could regulate this market. It should be emphasized that the main aim should be the protection of those involved and not simply the recognition of the legal relations. The benefits of regulating the practice of surrogacy are various.

1. Exploitation of women especially in developing countries is one of the consequences of commercial surrogacy. Regulating this practice means to reduce the risks of exploitation of the surrogate mothers by the intending parents and by those operating the services between the intended parents and the surrogate mother.

2. Screening the potential parents in order to ban those who could represent a potential danger for the children.

3. Ensuring that there is an equal treatment between the intending mothers (independently of the genetic link between the intending mother and the child) and genetically linked intending fathers.

4. Ensure the possibility for the children born out of surrogacy to trace back to the surrogate mother and understand their complex identity when they become adults.