The Surrogacy Bill 2016 - The World Divided: Surrogacy Debate

Adoption is an underutilized option that can not only give happiness to a childless couple but also provide a future for an orphan child

Background

Surrogacy is when a woman carries a baby for another couple and gives up the baby at birth. In the past decade, commercial surrogacy has grown tremendously in India. It is currently estimated to be a $2-billion industry. Before November 2015, when the government imposed a ban, foreigners accounted for 80 per cent of surrogacy births in the country. This is because most countries, barring a few such as Russia, Ukraine and some U.S. states, do not permit commercial surrogacy. Many countries in Europe have completely prohibited surrogacy arrangements, both to protect the reproductive health of the surrogate mother as well as the future of the newborn child.

The Trigger

In 2008

The debate began when, in 2008, a Japanese doctor couple commissioned a baby in a small town in Gujarat. The surrogate mother gave birth to a healthy baby girl. By then the couple had separated and the baby was both parentless and stateless, caught between the legal systems of two countries. The child is now in her grandmother’s custody in Japan but has not obtained citizenship, as surrogacy is not legal in Japan.

In 2012

An Australian couple who had twins by surrogacy, arbitrarily rejected one and took home the other. A single mother of two from Chennai decided to become a surrogate mother in the hope that the payment would help her start a shop near her house. She delivered a healthy child, but her hopes bore little fruit for herself. She received only about Rs.75,000, with an autorickshaw driver who served as a middleman, taking a 50 per cent cut. After repaying the loans, she did not have enough money.

In 2014

On January 29, 2014, 26-year-old Yuma Sherpa died in the aftermath of a surgical procedure to harvest eggs from her body, as part of the egg donation programme of a private clinic based in New Delhi.

These incidents highlight the total disregard for the rights of the surrogate mother and child and have resulted in a number of public interest litigations in the Supreme Court to control commercial surrogacy. The 228th report of the Law Commission of India also recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to needy Indian citizens by enacting a suitable legislation.

The World Divided: The Surrogacy Debate

Against the Motion

·         Research has shown that when compared to babies conceived naturally, children conceived via in vitro fertilization suffer more from birth defects like heart wall problems, cleft lip, cleft palate, anorectal atresia, esophageal atresia, etc.

·         Surrogacy is expensive – in America, the cost can go up to $80,000. The expenditure includes the agency fee, the surrogate fee, legal and medical costs, IVF fees, etc.

·         Not only does the surrogate mother candidate face a lot of medical problems during the pregnancy term (health risk), there is also the emotional issue of getting too attached to the baby and finding it difficult to let go of it after it is born.

·         A section of conservative individuals and even the Church opines that surrogacy is selling a woman’s body and therefore it is similar to prostitution – a form of female degradation.

For the Motion

·         A woman has full rights over her body – she has in fact, the sovereign power over it. Therefore if she wishes, she can become a carrier – that’s what those who support surrogacy say.

·         The intended couples should prepare themselves well ahead if they want to opt for surrogacy. Yes, it is expensive but that’s nothing compared to the joy and the feeling of fulfillment it brings about.

·         The main reason which glorifies surrogacy is the fact that it makes the family complete for those couples who cannot have a baby on their own. When you bring a new life into the world, when you bring eternal sunshine into somebody’s life – how can that act be criticized?

It is all in the mind! Debates will perhaps continue for a few more decades before the detractors come to realize the nobility of this act.

Surrogacy is illegal in a lot of places – but when surrogacy helps and not hurts and when it is done with the consent of both the parties…don’t you think all the points raised against it do not hold much water?

International comparison of surrogacy laws & Surrogacy Case laws

As social funding cuts hit across Europe, access to infertility services decreases (and prices greatly increase). As a result, increasingly more foreign couples are visiting Ukraine to arrange for gestational surrogacy.

While Ukrainian legislation is quite liberal, returning home with their child may present new problems because each country has different laws regarding what is allowed or forbidden in regards to surrogacy. Some countries ban surrogacy outright, including Germany, Sweden and France. Authorities in the U.K. have also been known to present legal roadblocks.

Despite the growth in international surrogacy, there is no international regulation of surrogacy or minimum standards to which nations must adhere. Moreover, there are no international conventions, or reciprocal arrangements for the recognition of the legal parentage of a child. Thus, a parental order obtained, for instance, in California will not be recognized in England.  

Some countries demand evidence that at least one parent of the child has a genetic relationship with the child, usually by DNA testing, while other countries insist on seeing the legal release of the child by the husband of any married surrogate (which makes the use of a single surrogate mother more attractive). Where surrogacy follows a gifted embryo and neither new parent are genetically linked obtaining citizenship and travel document becomes far more difficult and protracted, even into U.S. In any event, compliance with numerous regulations and formalities takes months and greatly adds to the stress of the intended parents.

The legal complexities of surrogacy make it essential that potential parents seek legal advice both in their home countries and in Ukraine. For your convenience, below we provide a brief overview of applicable international surrogacy laws:

In USA

Issuance of a U.S. citizenship at birth to a child born abroad is governed by Immigration and Nationality Act (INA) Sections 301 and/or 309. The determination of citizenship to children born overseas to a U.S. parent falls within jurisdiction of the U.S. Department of State, which requires a U.S. citizen to have a biological connection to a child in order to transmit U.S. citizenship to such child. Simply being named as a parent on a Ukrainian birth certificate for a child born as a result of surrogacy arrangement in Ukraine does not mean that the birth certificate will meet the U.S. immigration and citizenship requirements.

The State Department determines the citizenship of each child born as a result of surrogacy program individually, on a case by case basis, after carefully considering the specific facts surrounding the child’s birth and his or her parents’ situation. The best evidence available to parents to show their blood relationship to a child born to a surrogate mother in Ukraine is DNA testing, which obviously cannot be performed until after the child is born.

A U.S. citizen parent who has a child using a surrogate mother in Ukraine may apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) and a U.S. passport for the child at the U.S. Embassy in Kyiv (Consular Section). A CRBA certifies that a child born abroad is a U.S. citizen and lists only the name(s) of the U.S. citizen parent(s) with a biological connection to the child. If the spouse of the U.S. citizen parent does not have a biological connection to the child or is not a U.S. citizen, the spouse will not be recorded on the CRBA even if he or she is listed on the local Ukrainian birth certificate.

If the U.S. Embassy determines that the child is a U.S. citizen, he or she will need a U.S. passport to enter the United States. As part of the application process, the intended parents should provide to the U.S. Embassy evidence of the child’s conception and birth, as well as evidence of the parents’ identity, citizenship, and requisite physical presence in the United States. They also will need to arrange for the child’s DNA tests.

In summary, if the child is not biologically related to a U.S. citizen parent, the child will not acquire U.S. citizenship automatically at birth. Furthermore, should the child have blood relationship only to the U.S. citizen father, but not the father’s wife, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to Immigration and Nationality Act, Section 309(a), and the father would have to meet the additional requirements of that section otherwise, INA 301 requirements would apply, including certain residence requirements.  

1987 - New Jersey - The watershed Baby M Case

The watershed Baby M case which took place in 1987 in New Jersey, was the first major legal skirmish concerning surrogate parent arrangements. Mary Beth Whitehead had contracted with William and Elizabeth Stern to act as a surrogate mother for them. She was impregnated with an embryo (made by her egg was fertilized with Stern's sperm), and after carrying the child to term, she had a change of heart about handing the baby over to the couple.

Whitehead sued for custody of the child. Ultimately, the New Jersey Supreme Court declared that blood was thicker than paper: it ruled her contract with the intended parents invalid. The court stated that the government could not enforce a contact that orders a fit and loving mother to give away her child. Whitehead was denied custody, but granted visitation rights.

1993 - California - Johnson v. Calvert

Another case heard by a state Supreme Court took place in California in 1993. Johnson v. Calvert resulted in a contrasting ruling to the Baby M case. Mark and Crispina Calvert hired Anna Johnson to carry to term their genetic child. Johnson ultimately sued for custody of the child. In a 6-1 decision, the California Supreme Court ruled that Johnson had no parental rights to the child.

This was the first time a state high court enforced a surrogacy contract. "It is not the role of the judiciary to inhibit the use of reproductive technology when the legislature has not seen fit to do so," wrote Justice Edward Panelli for the majority. The court's only woman, Justice Joyce Kennard, wrote in a sharply worded dissent: "A pregnant woman is more than a mere container or breeding animal; she is the conscious agent of creation no less than the genetic mother, and her humanity implicated on a deep level. Her role should not be devalued." The court has reaffirmed this finding several times since 1993.

1997 - Pennsylvania - The Turczyn Case

Debbie and Michael Turczyn were separated in 1996 when she decided to become artificially inseminated by an anonymous sperm donor. The couple reconciled, and with Michael's support, Debbie gave birth to quadruplets. Nine months later, Michael moved out again and Debbie filed for divorce. She sued him for child support. A lower court and the Pennsylvania Superior court ordered that Michael had held the children to be his own throughout the pregnancy, and that in this case, conduct trumped biology.

Michael and his lawyer appealed to the Pennsylvania Supreme Court, who refused to hear the case again. The court held that the lower courts were right in finding that Michael was the legal father by reasons of estoppel. There are no legal guidelines in terms of how long a person has assumed a parental role before being considered a legal parent. As Michael's lawyer says, "It's a case by case basis, which leaves plenty of room for a judge's discretion. One judge might say four months is absolutely too short a time, another judge may say five years is too short a time."

1998 - California - The Buzzanca Case

In this unusual California case, a complicated intersection of surrogacy contracts and artificial inseminations left an unborn child legally parentless. The Buzzanca couple agreed to have an embryo genetically unrelated to them implanted in a surrogate mother who would carry the child to term for them. Shortly before the baby was born, Mr. Buzzanca filed for divorce. He claimed that there were no children born to the marriage and that he was not responsible for the child born to the surrogate, financially or otherwise.

The case was brought to trial in a California lower court, who was responsible for determining who the lawful parents of the child were. The court at first concluded that the child had no lawful parents because the intended couple had no biological relationship to the child. An appellate court eventually overturned this decision, finding the Buzzancas the legal parents, stating that a genetic tie is not determinative and that rather the intention of the parties is controlling. Luanne Buzzanca now has custody of the child, and her ex-husband is paying child support.

1999 - New York - The Fasano Case

In this New York case, Donna and Richard Fasano contracted with a fertility clinic to implant two of their fertilized eggs into her uterus. Nine months later, she had twins. One was white and the other black. The clinic had mixed up its fertilized eggs, implanting one of theirs and one belonging to a black couple. The Fasanos eventually had to turn over the baby to its biological parents, but sued for visitation rights. The court decided that Donna's motherhood was only "nominal" and denied the Fasanos visitation. Now the biological parents are suing the fertility clinic for negligence.

This case was viewed partly in terms of property rights, bringing the following question to the fore: Are frozen embryos in a lab's test tube "people" or are they "property?" If embryos are property, they can be awarded to either person in a divorce, like any asset; if they are people, then custody laws become relevant, and an important factor is who the better parent will be.

2001 - California - The Beasley case

Helen Beasley is a 26 year old British woman who was hired to carry to term a child intended for a California couple for nearly $20,000. Beasley discovered 8 weeks into her pregnancy that she was carrying twins. Her contract with the couple stipulated that she would undergo a "selective reduction" if she became pregnant with more than one fetus. Upon learning that about the twins, the couple arranged for Beasley to "reduce" the number of fetuses by one. Beasely refused on the grounds that she was too far into the pregnancy to undergo the procedure. Effectively, these actions could have amounted to the couple requiring an abortion of an unwilling mother.

Beasley acknowledges that she has no legal rights to the children, but now does not want the intended couple to have them. "I believe these parents have made it expressly clear that they have not wanted these children." Another couple has taken over the surrogacy contract.

In France 

In France, Article 17/6 of the Civil Code makes void any agreement with a third party relating to procreation or gestation. In the Mennesson case, the highest court in France, the Cour de Cassation, ruled that that it was contrary to public policy to give effect to foreign surrogacy agreements. An appeal is currently being prepared by the intending parents to the European Court of Human Rights. Likewise, the French embassy’s website in Kyiv strongly warns its citizens against the practice, saying those who fail to comply with the ban may encounter "serious judicial and administrative problems" including possible criminal sanction.

On the other hand, the Conseil d'Etat, the highest administrative court, provided an administrative means of recognizing foreign surrogacy agreements by overturning a decision of the French Consulate in India not to issue travel documents. The Conseil d'Etat has no jurisdiction over matters of parentage but nevertheless made an order which effectively made lawful a surrogacy agreement entered into overseas.

2014 - Mennesson and Others v. France and Labassee v. France 

26 June 2014 (Chamber judgments)

These cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment. In both cases the applicants complained in particular of the fact that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of parent-child relationships that had been legally established abroad. The European Court of Human Rights firstly noted that in the present cases Article 8 (right to respect for private and family life) of the European Convention on Human Rights was applicable in both its “family life” aspect and its “private life” aspect.

On the one hand, there was indeed no doubt that the applicants had cared for the children as parents since the children’s birth and they lived together in a way that was indistinguishable from “family life” in the accepted sense of the term.

On the other hand, the right to identity was an integral part of the concept of private life and there was a direct link between the private life of children born following surrogacy treatment and the legal determination of their parentage. The Court then noted that the interference with the applicants’ right to respect for their private and family life resulting from the French authorities’ refusal to recognised the legal parent-child relationship had been “in accordance with the law” within the meaning of Article 8 of the Convention. The Court also accepted that the interference in question had pursued two of the legitimate aims listed in Article 8, namely the “protection of health” and the “protection of the rights and freedoms of others”. It observed in this regard that the refusal of the French authorities to recognised the legal relationship between children born as a result of surrogacy treatment abroad and the couples who had the treatment stemmed from a wish to discourage French nationals from having recourse outside France to a reproductive technique that was prohibited in that country with the aim, as the authorities saw it, of protecting the children and the surrogate mother.

Lastly, examining whether the interference had been “necessary in a democratic society”, the Court stressed that a wide margin of appreciation had to be left to States in making decisions relating to surrogacy, in view of the difficult ethical issues involved and the lack of consensus on these matters in Europe. Nevertheless, that margin of appreciation was narrow when it came to parentage, which involved a key aspect of individuals’ identity. The Court also had to ascertain whether a fair balance had been struck between the interests of the State and those of the individuals directly concerned, with particular reference to the fundamental principle according to which, whenever children were involved, their best interests must prevail. In both cases the Court held that there had been no violation of Article 8 of the Convention concerning the applicants’ right to respect for their family life and a violation of Article 8 of the Convention concerning the children’s right to respect for their private life. The Court observed in particular that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr and Mrs Mennesson and Mr and Mrs Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society. The Court further noted that the case-law completely precluded the establishment of a legal relationship between children born as a result of – lawful – surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.

2014 - D. and Others v. Belgium (no. 29176/13)

In its decision in the case of D. and Others v. Belgium (application no. 29176/13) the European Court of Human Rights decided, unanimously, to strike the application out of its list in so far as it concerned the Belgian authorities’ refusal to issue a travel document for the child, A., and to declare inadmissible the remainder of the application. This decision is final.

The case concerned the Belgian authorities’ initial refusal to authorise the arrival on its national territory of a child who had been born in Ukraine from a surrogate pregnancy, as resorted to by the applicants, two Belgian nationals.

This refusal, maintained until the applicants had submitted sufficient evidence to permit confirmation of a family relationship with the child, resulted in the child effectively being separated from the applicants, and amounted to interference in their right to respect for their family life. Nonetheless, Belgium had acted within its broad discretion (“wide margin of appreciation”) to decide on such matters. The Court also considered that there was no reason to conclude that the child had been subjected to treatment contrary to Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights during the period of his separation from the applicants.

In view of developments in the case since the application was lodged, namely the granting of a laissez-passer for the child and his arrival in Belgium, where he has since lived with the applicants, the Court considered this part of the dispute to be resolved and struck out of its list the complaint concerning the Belgian authorities’ refusal to issue travel documents for the child.

Principal facts

The applicants, Mr D. and Ms R., are Belgian nationals who were born in 1960 and 1968 respectively and live in Belgium. The applicants also lodged the application on behalf of their child, A.

The applicants, a married couple, travelled to Ukraine in order to make arrangements for a surrogate pregnancy. A. was born in Ukraine from this surrogate pregnancy on 26 February 2013. Mr D. and Ms R. declared A.’s birth to the Ukrainian authorities and obtained a Ukrainian birth certificate. Mr D. was recorded as A.’s father, and Ms R. as his mother. The birth certificate made no mention of the use of a surrogate mother.

On 15 March 2013 the applicants asked the Belgian embassy in Kyiv to issue a Belgian passport for A.; this was refused on the ground that they were unable to present certain documents making it possible to confirm the family relationship with the child, A.

On 19 March 2013 the applicants applied to the President of the Brussels Court of First Instance, sitting as the urgent applications judge, asking him to order the Belgian authorities to issue them with a travel document to enable A. to come to Belgium.

On 22 March 2013 they also brought proceedings before the Brussels Court of First Instance, which are still pending to date, seeking to have the validity of the child’s Ukrainian birth certificate recognised.

By an order of 5 April 2013, the urgent applications judge rejected their request, on the ground that their file left many questions unanswered concerning the surrogate mother and the method of procreation used. Furthermore, the applicants had not submitted sufficient evidence enabling the court to accept prima facie the existence of a biological family relationship between them and the child. The applicants lodged an appeal against that decision.

On 25 April 2013 the applicants were obliged to return to Belgium without A., since their residence permit in Ukraine was about to expire. A nanny looked after the child in their absence and they travelled to Ukraine as frequently as possible, in particular between 30 May and 6 June 2013 and between 11 and 18 July 2013.

On 31 July 2013 the Brussels Court of Appeal, ruling on an urgent application, found that the applicants had gathered many additional documents in comparison to the file submitted at first instance, and especially documents concerning Mr D.’s status as a biological parent. In consequence, it ordered the Belgian State to issue him with a laissez-passer or any other appropriate administrative document bearing A.’s name, in order to enable A. to travel to Belgium with him.

The applicants travelled to Ukraine to receive the travel document on 5 August 2013 and returned to Belgium on the following day, accompanied by A. All three have been living together in Belgium since that date.

Decision of the Court

Articles 3 and 8 (the authorities’ refusal to issue a travel document to the child) The Court noted the change of circumstances since the application had been lodged, namely the granting of a laissez-passer to A. and his arrival on 6 August 2013 in Belgium, where he has since lived together with the applicants.

Taking these circumstances into account, the Court considered that the complaint based on the Belgian authorities’ refusal to issue a travel document for the child, as presented by the applicants, had been adequately and sufficiently remedied and that the dispute should now be considered as resolved. In consequence, this complaint was struck out of the list.

Article 8 (temporary separation of the child and the applicants)

The Court considered that the situation complained of fell within the scope of Article 8. Even if Mr D. and Ms. R. had been separated from the child during the period under consideration, it was not disputed that they had wished to look after A., as his parents, from his birth, and that they had taken steps in order to allow for an effective family life (quite apart from the fact that all three had been living together since the child arrived in Belgium). The Belgian authorities’ initial refusal to issue a travel document for A., which had resulted in their effective separation, had amounted to interference in the applicants’ right to respect for their family life. The Court noted that this interference had been provided for by law and pursued several legitimate aims, namely the prevention of crime, especially trafficking in human beings, and the protection of the rights of others – those of the surrogate mother and of A. As to whether this interference in their family life had been “necessary in a democratic society”, the Court reiterated that the States had a relatively wide margin of appreciation in this area, particularly where the case raised sensitive moral or ethical issues. While acknowledging that the situation must have been difficult for the applicants, the Court considered that neither the urgent proceedings, which had lasted four months and twelve days in total, nor the period of the applicants’ actual separation from A. could be considered as unreasonably long. It considered that the Convention could not oblige the States to authorise entry to their territory of children born to a surrogate mother without the national authorities having a prior opportunity to conduct certain legal checks.

In addition, the Court took the view that Mr D. and Ms R. could reasonably have foreseen the procedure to be followed in order to have the family relationship recognised and to take the child to Belgium, especially as they had been advised by a Belgian lawyer and a Ukrainian lawyer.

It also noted that the Belgian State could not be held responsible for the difficulties they had encountered in remaining in Ukraine for a longer period, even during the entire period that the proceedings were pending before the Belgian courts.

Lastly, the Court considered that the time taken to obtain the laissez-passer had, at least in part, been attributable to the applicants themselves, in that they had not submitted sufficient evidence at first instance to demonstrate their biological ties to the child.

The Court concluded that, in refusing until 31 July 2013 to authorise the child A.’s arrival on the national territory, the Belgian State had acted within the limits of the margin of appreciation enjoyed by it. It followed that the complaint under Article 8 of the Convention was manifestly ill-founded and had to be rejected.

Article 3 (temporary separation of the child and the applicants)

The Court noted that the applicants had not submitted any concrete evidence enabling it to conclude that the child A. had been subjected to any form of harmful treatment during the period of separation from the applicants. Equally, although it did not contest the fact that the situation must have been difficult for the applicants, the Court considered that, in the circumstances of the case, the threshold of severity required for the application of Article 3 had not been attained. In consequence, it dismissed this complaint as manifestly ill-founded.

In Italy

Before 2004, Italy did not have any law or regulation concerning its stance on medically assisted reproduction, including surrogate motherhood. According to the Human Reproduction section of the Oxford Journal, the Italian Parliament enacted Law 40/2004 to better regulate medically assisted reproduction techniques. Specifically, the 2004 law forbids surrogacy and states that “all surrogate mother contracts, which require the surrogate mother to consent to third party adoption of the child following birth and to facilitate the transfer of child custody, are null under the Italian Civil Code (1942, art.1325), because the law views them as being against public policy.” Italy joined the growing list of European countries placing strict regulations on procedures involving human reproduction.

Italian law prevents couples from using a surrogate mother, and in theory, anyone caught entering into a surrogacy arrangement faces up to two years in prison and a fine of up to a million euros.

Two years ago, a child was taken from its parents who had paid a surrogate mother in Ukraine 25,000 euros. The couples were charged with fraud and the child put up for adoption.

In 2016, during debate over Italy's same-sex unions bill, then-Interior Minister Angelino Alfano sparked outrage when he said that surrogacy should be treated "like a sex crime".

Gay couple as dads to surrogate babies

An Italian court has ruled for the first time that two gay partners should be legally recognised as the fathers of two surrogate children. In a landmark ruling, the Court of Appeal in the northern city of Trento decided that both men can be officially named as the father - not just the parent who is biologically related.

The children, now aged seven, were born to a surrogate mother in Canada through artificial insemination and neither they nor their fathers have been identified.

In their decision, the judges said in Italy parental relationships should not be determined only by the biological link.

"On the contrary, one must consider the importance of parental responsibility, which is manifested in the conscious decision to raise and care for the child,” they said.

Details of the decision were published on Tuesday on Article 29, a website that refers to an article regarding family in the Italian Constitution.

It said the decision made on February 23 had "great significance", as it is the first time an Italian court has ruled that a child has two fathers, while also recognising the need to safeguard the needs of the child.

2017 - Paradiso and Campanelli v. Italy

24 January 2017 (Grand Chamber judgment)

This case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into with a Russian woman by an Italian couple (the applicants); it subsequently transpired that they had no biological relationship with the child. The applicants complained, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent-child relationship established abroad by registering the child’s birth certificate in Italy.

The Grand Chamber found, by eleven votes to six, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in the applicants’ case. Having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Grand Chamber held that a family life did not exist between the applicants and the child. It found, however, that the contested measures fell within the scope of the applicants’ private life. The Grand Chamber further considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children. The Grand Chamber also accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the room for manoeuvre (“margin of appreciation”) available to them.

Netherlands

The popular image of the Netherlands as a liberal bastion does not as yet extend to its approach to surrogacy. Altruistic surrogacy is legal in the Netherland, but commercial surrogacy is illegal. Entering or attempting to enter a surrogacy arrangement can be punished with imprisonment. Moreover, although altruistic surrogacy is technically legal, there are very few hospitals taking in couples and there are extremely strict rules to get in. This makes a lot of couples seek their treatment outside the Netherlands.

The Dutch Government operates a very restrictive policy with respect to commercial surrogacy. Incidents in recent years have led to numerous parliamentary questions being raised in the Second Chamber of the Dutch Parliament. The Minister of Justice has responded to the Dutch Parliament by commissioning research to be conducted into the nature and scope of the problems related to commercial surrogacy and the unlawful placement of children. The aim thereby is to ensure that more clarity can be gleaned as to what actually occurs in the countries where the possibilities are greater than in The Netherlands, as well as providing information with regard to the Dutch response upon the return of the commissioning parents to The Netherlands.

From April 2010 until January 2011, researchers from the Utrecht Centre for European Research into Family Law (UCERF) at the Molengraaff Institute for Private Law of Utrecht University conducted the research commissioned by the Minister of Justice.1 The resulting report was published on 2 March 2011.2 The report contains an in-depth study of Dutch criminal and civil law on the consequences of surrogacy, and a detailed analysis of the way Dutch private international law does and could regard international surrogacy. Furthermore, it contains reports from four jurisdictions that allow surrogacy, namely, California (USA), India, Greece and Ukraine, and eight reports from European countries that are faced with the same problems as The Netherlands, namely, Belgium, England, Germany, France, Norway, Poland, Spain and Sweden. In these country reports, answers are provided as to whether specific rules exist regulating surrogacy and which measures have been adopted to ensure the enforcement of those rules.

Netherlands - Legal and illegal aspects of surrogacy

Under certain conditions, surrogacy is permitted in the Netherlands. Intended parents are free to make a private arrangement with someone they know and are allowed to reimburse her for the cost of bearing the child. However, it is against the law to promote commercial surrogacy.

Netherlands - Surrogacy is legal under certain conditions

In the Netherlands, surrogacy is permitted under the following conditions:

·         The intended parents can make a private arrangement with someone they know, for instance a relative or acquaintance. They are not allowed to publicly announce that they are looking for a surrogate mother. This includes posts on social media. 

·         The surrogate mother may be reimbursed for her expenses.

Promoting commercial surrogacy is illegal in the Netherlands

Promoting commercial surrogacy is prohibited by law under articles 151b and 151c of the Criminal Code. The law does not allow:

·         websites to advertise surrogacy, on behalf of people who are looking for – or want to become – a surrogate mother;

·         Individuals to publicly announce, for instance on social media, that they are looking for a surrogate mother – or that they want to become a surrogate mother.

Surrogate mother is married: the child has two legal parents at birth

The surrogate mother will be the child’s legal mother, and if she is married her husband will be the child’s legal father; both will have parental responsibility for the child by operation of law. In the very unlikely situation that the surrogate mother’s husband did not consent to the conception of the child, he may challenge his paternity. Unless the surrogate father was completely unaware of fact that his wife was acting as a surrogate for another couple, he is highly unlikely to succeed. In most surrogacy arrangements the surrogate’s husband will play a role. In cases of surrogacy in combination with IVF, the requirements are such that the surrogate mother’s husband’s consent is required.

In a recent case the paternity of the surrogate’s husband was challenged in the name of the child through an ad hoc guardian (bijzonder curator). The child may challenge the paternity of any non-biological father and is not bound by the consent of adults or their marital status. All this means that full parental status can be transferred to the intended parents only through joint adoption. However, before the child can be adopted by the intended parents, the surrogate parent(s) will first have to be divested of their parental responsibility. Divestment of parental responsibility is a measure of child protection used in cases where parents are unable or unfit to look after their child. Parents cannot apply to the court to be divested, only the Child Care and Protection Board and the Public Prosecution Service can apply to the court to have parents divested of their responsibility.  In the late 1990s there had been discussion in Parliament whether parents themselves should not be given a right to apply for divestment, but the Minister of Justice at that time was against such a measure as it would introduce the possibility for parents to relinquish their parental rights. The outcome of a divestment procedure is uncertain as the Dutch Supreme Court has not yet had the opportunity to decide on divestment in the context of surrogacy. However, decisions by various courts of appeal allow for the divestment of the surrogate parents on the ground that they are unable or unfit to care for this particular child since they did not intend to have it for themselves. If the divestment procedure is successful, the intended parents may be attributed with joint guardianship, which is very similar to parental responsibility. Normally, when parents are divested of parental responsibility, guardianship will be attributed to an institution for family guardianship.26 However, in the surrogacy cases that have been published, guardianship was attributed to the intended parents if the court considered this to be the best possible solution for the child concerned. If the intended parents have taken care of the child together for a year, they may file for an adoption order with the court, provided they have been living together for three years on the day the adoption request is filed. There is no special post-surrogacy adoption procedure, which means that the normal criteria for adoption apply in such cases. These criteria require the adoption to be in the child’s best interests and state that adoption cannot take place if the child’s parents object. Only in a very limited number of circumstances may a court disregard parental objections. The court may, for instance, disregard a parental objection if the child has not lived with the parents since its birth. In an IVF-surrogacy pilot which took place in the 1990’s, all the children were adopted by the intended parents a year after their birth. No legal problems were reported. Nevertheless, in particular where parents have not involved the Child Protection Board before the birth of the child, transferring parental rights from the surrogate parents to the intended parents may be a lengthy procedure of which the outcome is uncertain.

Surrogate mother is not married: child has one legal parent at birth

If the surrogate mother is not married, the child will have only one legal parent by operation of law: the surrogate mother. She will also be the only holder of parental responsibility. The intended father may recognised the child with the surrogate mother’s consent. Once the intended father has acquired the status of legal parent through recognition, he may apply for sole parental responsibility, to the exclusion of the surrogate mother. The intended father can file such an application only if the surrogate mother is the sole holder of parental responsibility. The intended mother may subsequently adopt the child after she has been taking care of that child with the intended father for a year and where all the other criteria for adoption have been met.

It is unclear whether the unmarried intended mother will be attributed with parental responsibility by operation of law through partner adoption. If one follows the system of the law regarding parental responsibility, joint parental responsibility does not come about by operation of law for cohabiting couples as a result of adoption. However, in particular in the case of joint adoption, it would be rather awkward to attribute parental responsibility to only one of the adoptive parents, while the other can obtain it only through registration in the parental responsibility register (as is normally the case for cohabiting parents). In the case of partner adoption, it might be more defensible not to attribute parental responsibility to the adopting partner by operation of law, although it might well be contrary to the adopter’s expectations.

United Kingdom

Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985, making it is illegal to pay more than expenses for a surrogacy. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable within the United Kingdom. A surrogate mother still maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.

The UK's approach makes it very difficult for the intending parents to enter into commercial surrogacy arrangements. For example, it is unlawful for intending parents to advertise for a surrogate, or for a woman to advertise a willingness to become a surrogate. The Surrogacy Arrangements Act 1985 s.2(1) prevents a third party (though not a surrogate or intending parents) from initiating or taking part in negotiations, offering or agreeing to negotiate, or compiling any information with a view to its use in making, or negotiating the making of, surrogacy arrangements.

Since the Human Fertilisation and Embryology Act 1990 came into force, intending parents have been able to acquire legal parenthood of their child to the exclusion of the surrogate (and, if applicable, her husband) by a parental order. The criteria for a parental order are now contained in section 54 of the Human Fertilisation and Embryology Act 2008. A parental order will usually be granted by the English courts, provided that the criteria set out in section 54 are met and it is in the child's best interests to make the order. Although the Act provides that no more than 'reasonable expenses' should be paid to the surrogate, the English courts have retrospectively approved surrogacy payments made overseas which go beyond reasonable expenses. In any case, the couple must provide the English court with detailed documentation of all payments made to the surrogate mother.

Germany

The German courts read the German Constitution and the German Civil Code to ban all types of surrogacy as against public policy even though the German legislature has not expressly banned surrogacy. In reaching its holding, the court considered that German law forbids a human from being made the subject of a contract and bans a third party from being used for reproductive purposes. Additionally, Article 1 of the German Constitution protects human dignity as inviolable and charges all state authority to grant human dignity respect and protection. Finally, the German Civil Code defines a mother as “the woman who gave birth to it.” The Embryo Protection Act prohibits the transfer into a woman of an unfertilized egg cell produced by another woman (Section 1 (1) no 1 of the Act) as well as the artificial fertilization of an egg cell for any purpose other than bringing about a pregnancy in the woman from whom the egg cell originated (Section 1 (1) no 2 of the Act). Based on these principles of law, the court held that surrogacy is not permitted in Germany.

Furthermore, the German courts have taken reasonable measures to ensure that surrogate parenting is not acknowledged. When German couples hire surrogate mothers abroad and later attempt to bring those children into Germany as German citizens, the German courts have denied those requests.98 However, instead of denying the children statehood altogether, the German Solicitor General and the courts have allowed couples to adopt the children through the Central Adoption Resources Agency. By allowing couples to formally adopt their surrogate children before bringing them into the country as citizens, Germany has accommodated the needs of the children and families involved while still keeping its absolute ban on surrogate contracts.

Surrogacy is also prohibited in Austria, where the law on this issue is comparable to that of Germany. Austria refuses the splitting of motherhood between a genetic mother and a carrying mother, which is the case in IVF with ovum donation and surrogacy.