Family Law

Europe Continues To Feel Deeply Conflicted About Surrogacy – But It’s Taking Baby Steps 

It is now considered a fundamental human right for children to have a legally recognized relationship with their mother.

By  
on

In the United States, compensated surrogacy is generally accepted as an ethical way to form a family. While surrogacy law varies by state, the map continues to trend pro-surrogacy, with only a few hold-outs hanging on to outright prohibitions. Europe, however, is not on the same page. And even describing what page Europe is on is difficult. That landscape continues to be complicated – but slightly improved — after a decision by the European Court of Human Rights (the Court) earlier this month. The Court issued an advisory opinion concerning the rights of children to have a legally recognized parent-child relationship with their intended mother, even when their birth took place via surrogacy abroad.

“Mildly-Positive Results”

While the U.S. Supreme Court doesn’t issue “advisory opinions,” the Court’s advisory opinion has been described by pro-surrogacy legal experts as “mildly positive.” But before I describe the holding of the case, let me offer some factual background. The request for the opinion stems from the case of a French married heterosexual couple who had two children via surrogacy in California. Because France prohibits surrogacy, it’s not uncommon for French intended parents to come to the Golden State for assistance growing their families.

Are Genetics Important?

In this case, the French parents used the assistance of an egg donor, combined with the intended father’s sperm. So while the intended father is genetically related to the children, his wife, the intended mother, is not. Under California law, that fact makes no difference. Even for foreign citizens, California looks to the intent of a person to be parent as dispositive. So that meant that both French parents were legally recognized as their children’s parents under California law, and both appeared as the parents on the children’s California-issued birth certificates.

Unfortunately, when the couple returned home to France and attempted to register their children’s births, their application was rejected. A long and famous case resulted: Mennesson v. France. While the French courts continued to argue that surrogacy was illegal, and therefore that the parents had no rights to their children under French law, the parents took their case to the European Court of Human Rights. In 2014, the Court ruled that France had violated the European Convention on Human Rights (the Convention) and specifically the right to respect the children’s private life. The Court determined that that children’s rights to respect for their private life included the right “to establish the details of their identity as individual human beings, which include[d] the legal parent-child relationship.”

As a response to the Court’s ruling, the French court then agreed to allow the father to be recognized as a parent of the children. However, it continued to reject the mother’s assertion of rights as the children’s mother. The Mennessons returned to court to fight for mom’s rights, and the French court requested an advisory opinion from the Court on the issue. That brings us to the advisory opinion issued by the Court this month.

Sponsored

A Survey of European Law – It’s Complex!

As part of its analysis, the Court undertook an extensive survey of almost all countries party to the Convention – 43 out of 47! You have to respect those law clerks. The survey showed that surrogacy arrangements are explicitly permitted in only nine of the 43 countries, they are tolerated in another 10, and explicitly or implicitly prohibited in the remaining 24. That’s quite a patchwork! The survey further found that in 31 of the countries — including some of those prohibiting surrogacy — a genetically connected intended father who conceived a child abroad via surrogacy could establish himself as the parent of the child in his home country. In 19 countries, the mother could also establish herself as the legal mother of a child born through surrogacy, even when she was not genetically related to the child.

Unsurprisingly, the process for establishing the legal parent-child relationship varied by country. These included direct registration of a foreign birth certificate, adoption, or other court proceedings.

The Questions

First, the Court was asked whether a country must allow the intended mother to be recognized as the legal parent of the child in a situation where the child is conceived abroad via surrogacy, the intended father was recognized as a legal parent to the child, and the mother is not genetically related to the child. You might already be confused by this very specific question, but I’m not quite done. Second, if the recognition of the intended mother is indeed required, must it be by registration of the foreign birth certificate, or can the country instead require an adoption or some other proceeding?

Sponsored

And Results – Finally!

As to the first question, the Court found that yes, the Convention requires that children have a right to recognition of their legal parent-child relationship with their mother. The court stressed that the best interests of the child were paramount, and that without the recognition of their legal relationship with their mother, the children may be placed “in a position of legal uncertainty within society.” Particularly, the children may be denied access to the mother’s nationality (although not an issue here since both parents were French), they may not be able to inherit from their mother, and if their parents were to separate their mother may not have a right to a relationship with them, nor an obligation to support them. All good points!

However, on the second question, while the Court acknowledged that it was important for the uncertainty of the legal relationship between the mother and child to be as short lived as possible, it would not go so far as to require the direct registration of the details of the foreign-issued birth certificates. The Court determined that other means may be suitable, including requiring the intended mother to go through adoption proceedings. However, if adoption is the only legal avenue available to intended parents, then the whole procedure must be as quick as possible, so that the legal vacuum in which the child lives is kept to a minimum.

Italian lawyer and law professor Alexander Schuster shared his thoughts with me on the ruling. “This opinion expressly limited its scope to couples where the father has a genetic link to the child. If this is missing, the picture becomes highly uncertain.” Schuster explained that his major concern when he drafted and submitted a third-party intervention (like an amicus brief) to the Court in this case on behalf of the Centre for Interdisciplinary Gender Studies at Trento University “was to draw parallels between discrimination against children born out of wedlock and children born through medically assisted reproduction.” His concern was not just with the treatment of children born by surrogacy, but also those born with the assistance of an egg or sperm donor. Discrimination for such families has been widespread. “My fear is that the legal patchwork in Europe is recreating a group of children that suffer severe discrimination. Fortunately, this opinion suggests that the Court will not allow that to happen again.”

So, it’s good news that the Court determined that it is a fundamental human right for these children to have a legally recognized relationship with their mother. It is not awesome that countries may continue to force an intended mother to jump through hoops to get there. But looking for the positive in Europe, we will place this solidly in the “win” category.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

Topics

, , , ,