CRINmail 44:
Surrogacy and Children's Rights

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Introduction

This special edition of the Children in Court CRINmail presents a selection of news regarding case law and legislation in the field of surrogacy which have had a particular impact on the rights of children, including on the legal status of children born through surrogacy, commissioning parents and surrogates.

Being a relatively new practice, surrogacy, as well as other assisted reproductive techniques, has proven a difficult matter for the courts. There has been a divergence in reasoning and outcomes between jurisdictions grappling with the complex issues arising from the use of surrogacy. The problem is exacerbated where the laws are unclear or there is a lack of legislation addressing it. Consequently, children born through surrogacy and their parents are often left in a position of legal uncertainty.

Surrogacy arrangements come before the courts and legislatures in many different circumstances, however, the one thing they have in common is the fact that there is or will be a child on whose life the judgment or legislation will have a profound impact. Many of the rights guaranteed in the Convention on the Rights of the Child (CRC) are triggered in surrogacy situations, including the child’s rights to have their best interests as a primary consideration in all decisions concerning them, to non-discrimination, to an identity, to birth registration and to know and be cared for by their parents. These rights must be given sufficient attention by lawmakers, judges, government officials and all other relevant actors in the ongoing debate on surrogacy.

We hope you find this CRINmail informative and interesting. Please note that the scope of this CRINmail is limited to what we have found being discussed by the courts and legislatures. We have not touched on other issues, such as the sale and trafficking of children, commercial exploitation or the rights of children to an identity and to know their origins, which are nonetheless important aspects of the issue of surrogacy that we hope will be addressed by courts and lawmakers in the near future. CRIN will continue to monitor developments in the field of surrogacy and children’s rights. To provide feedback or suggestions, please email [email protected].

Court decisions

Legal status and citizenship of children born through surrogacy abroad

Last year saw several important surrogacy cases decided by the European Court of Human Rights (ECtHR). In June in the related cases of Mennesson v. France and Labassee v. France, the Court held that France had violated the right to family life under Article 8 of the European Convention on Human Rights (ECHR) by refusing to issue birth certificates for children born following a surrogacy agreement between their French parents and surrogate mothers in the United States. Read our previous Children in Court CRINmail for more details.

A month later in D v. Belgium the ECtHR held that checks carried out by Belgian immigration authorities before allowing a child born through surrogacy abroad to enter the country did not violate the right to family life, despite the child and the parents being separated for over four months. Read our previous Children in Court CRINmail for more details.

Legal status of commissioning parents

In November the Supreme Court of Ireland in a much anticipated decision ruled that the genetic mother of twins born through surrogacy cannot be included on their birth certificates, overturning a previous High Court decision that recognised the genetic mother as the legal parent. The twins were the genetic offspring of a married couple, but carried by the woman’s sister acting as an altruistic surrogate. According to the judgment, there was no common law or legislation in place to determine the issue, and that such “lacuna in the law… should be addressed in legislation and not by this Court. There is clearly merit in the legislature addressing this lacuna, and providing for retrospective situations of surrogacy.”

In fact, the Irish government had prepared draft amendments covering the issue of surrogacy but later withdrew them in anticipation of the Supreme Court’s ruling given the uncertainty of constitutional rights between a birth mother and genetic mother. The amendments included a prohibition of commercial surrogacy, but also provided for the creation of parental orders - a simpler process to transfer parenthood to the commissioning couple. However, after the Supreme Court delivered its ruling, Minister for Justice Frances Fitzgerald promised that legislation would be finalised in the lifetime of the current Government to address surrogacy as well as assisted reproduction more widely.

Also last November the Supreme Court of Cassation of Italy ordered that a child born following a surrogacy arrangement between an Italian couple and a Ukrainian surrogate be put up for adoption. The couple, who had unsuccessfully tried to adopt a child in Italy on several occasions before considering international surrogacy, were charged with fraud after making an application to be registered as the child’s parents, as surrogacy is outlawed in Italy. Despite the Attorney General’s submission that the child, now three-years-old, should remain in the care of the couple, the Court held that there was no legal basis to recognise them as parents, distinguishing the ECtHR decisions in Mennesson and Labassee, where one of the parents had a biological connection with the child (see above). Read the full judgment (in Italian).

However, last month the ECtHR ruled against the Italian State in a case with very similar facts. The case concerned a child born to a surrogate mother in Russia who was removed from an Italian couple and placed in a foster family. The couple was also accused of fraud when attempting to register the child. It later transpired that, unknown to them, the child was not genetically related to either of the commissioning parents. An Italian court ordered in 2011 that the child be placed under guardianship on the basis that he had no biological connection to the couple. The European Court ruled that, although the couple had only spent six months with the baby, the removal of the child by the Italian authorities’ violated the right to family life of the applicants and ordered the State to pay compensation to the couple. Nonetheless, given that the child would have already developed emotional ties with the foster family, the Court held that there is no obligation that he be returned to the couple. Read CRIN’s case summary.

In October a family court in England ruled that an application for a parental order can be made after the statutory time limit of six months has expired. The case concerned a child born following an international surrogacy arrangement between a British couple and an Indian woman. Since under English law the woman who gave birth to the child and her husband are presumed to be the child’s legal parents, commissioning parents need to apply for a parental order to transfer parental responsibility. Parental orders can be granted only under a number of conditions, including that the application is made within six months of the birth of the child. In the current case, however, after consideration of the welfare of the child the court held that the time limit is too strict. According to the judge in the case, Sir James Mumby, “[g]iven the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe the law as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical."

Legal status of same-sex parents

Germany’s highest court in December issued a landmark decision recognising a child of a gay couple born through surrogacy abroad. The child, who was born to a surrogate mother in California using one of the men’s sperm, was registered in the United States as the child of the two men and a California court recognised the couple as the legal parents of the child. Upon returning to Germany, however, the authorities refused to register the child’s birth or the couple as the child’s parents, a decision which was upheld by lower courts on the basis that surrogacy agreements are against public policy. The German Supreme Court ruled that the decisions of foreign authorities in such matters must be respected as "part of a child's welfare to be able to rely on the parents to have continuous responsibility for its well-being". The Court cited the best interests of the child under Article 3 of the CRC and the ECtHR decisions in Mennesson and Labassee (see above). Although surrogacy remains illegal in Germany, this ruling means that German authorities must now register the births of children born using such procedures abroad and recognise the intended parents as legal parents where the kinship between the child and the parents has been legally recognised by a foreign court. For more information, see CRIN’s case summary.

In Australia, the Family Court in November recognised a gay man as the father of a child born through surrogacy abroad, giving him and his partner equal parenting responsibilities. The couple moved from New South Wales to Victoria before making arrangements for a child to be born through surrogacy in India, since international commercial surrogacy is banned in NSW. The landmark decision in Victoria declaring a sperm donor as a parent paves the way for the partner who is not biologically related to the child to apply for step-parent adoption. However, in this case if the partner wishes to adopt the child as a stepfather the couple would have to move interstate, as same-sex adoption is illegal in Victoria. According to a family law expert, the “complex and contradictory laws between the states and territories highlight the absurdity in how residents are treated legally depending where they live”.

In September the Swiss Federal Office of Justice announced its plans to appeal a cantonal court decision that recognises two men as the legal parents of a child born to a surrogate in the United States. In that case, which we covered in a previous Children in Court CRINmail, the court made the order on the basis of the child’s well-being as a paramount consideration. The Office’s statement notes that since surrogacy is illegal in Switzerland, only one of the men who is the genetic father of the child could be regarded as a legal parent. However, it also states that in order to observe the constitutionally guaranteed right of the child to know their origins, the surrogate mother and her husband, who, legally speaking, is considered the father of the child at the birth, should also be added in, as should the fact that the egg was from an anonymous donor.

Access to surrogacy

A challenge to South Africa’s surrogacy laws was brought in the Pretoria High Court in October. In the first case of its kind, a woman is alleging that the requirement of a genetic link between the child and at least one of the commissioning parents in the Children’s Act 2005 is unconstitutional, violating the right to equality and dignity of those who cannot contribute their own gametes. The University of Pretoria’s Centre for Child Law has joined the application, recommending that the requirement be retained except in “exceptional circumstances”. The Court has reserved judgment.

Rights of surrogate mothers

In the United States, the Supreme Court of Tennessee ruled in September that a juvenile court was wrong to terminate the parental rights of a surrogate mother and her husband before the baby was born. Soon after giving birth, the surrogate mother filed a motion for custody of the child, which was rejected by both the juvenile court and the Court of Appeals. The Supreme Court, however, clarified that voluntary relinquishment of a biological birth mother's parental rights before the child’s birth is prohibited, and that after the birth, where the birth mother opposes the termination of rights, it must be shown that the parent is unfit or that the child would suffer substantial harm. The Court expressed concern that the courts are "ill-equipped to deal with the complex questions that inevitably arise in this area of the law", and asked the legislature to take action to “address the fundamental questions related to surrogacy”.

Legislative developments

Regulating the use of surrogacy has proven problematic for lawmakers. Some countries are ignoring the need for regulation. For example, Azerbaijan recently removed a bill from discussion in Parliament due to the public’s negative perception of the practice of surrogacy. Others, however, have been addressing the matter head-on, albeit in no clear direction, with some countries accommodating surrogacy arrangements to some extent and others tightening their restrictions and even criminalising certain aspects of the practice.

Proposed laws restricting surrogacy

In November the Thai National Legislative Assembly passed - with 177 to two votes and six abstentions - the first reading of a draft bill which bans commercial surrogacy. If the law is passed, women who agree to become surrogates in return for payment will be liable to a maximum 10-year prison sentence and fine of Bt200,000 (approximately £4,000). Social Development and Human Security Minister Pol General Adul Saengsingkaew stated that the bill sought to punish all sides involved in commercial surrogacy, protect surrogate babies and suppress human trafficking. The push to legislate in the area comes following several high-profile surrogacy scandals in the country.

The scandals seem to have also impacted on neighbouring India, where the Assisted Reproductive Technology (Regulation) Bill is likely to be introduced in the winter session of Parliament. The proposed amendment would prohibit foreign nationals and single persons from using the services of a surrogate in the country.

Finally, China is considering stricter legislation and larger fines for illegal surrogacy agencies. Surrogacy has been banned in China since 2001, however there is a growing underground market which accounts for over 10,000 children carried by surrogates each year.

Proposed laws regulating surrogacy

Israel is in the process of enacting legislation that would allow single persons and same-sex couples to enter into surrogacy arrangements. The Bill passed its first reading in the Knesset in October with 45 to 15 votes. It also proposes to regulate international surrogacy arrangements as well as the services provided by licensed Israeli agencies. Israel first passed its Surrogacy Law in 1996, under which only couples may apply to the Board for Approval of Surrogacy Agreements. In the words of Health Minister Yael German, “[t]his bill is about the principle of equality, regardless of one's sexual orientation or the composition of the family unit. Everyone has the right to become a parent. This bill also seeks to regulate surrogacy services procured overseas, to ensure that such proceedings protect the legal rights of all those involved."

Serbia’s draft new Civil Code includes a provision for surrogacy agreements in cases of infertility or when, due to severe health issues, it is not advisable to conceive naturally or through other forms of assisted fertility in order to prevent transmission of hereditary diseases to the child. The law would allow surrogacy for married or cohabiting couples and, in some circumstances, single persons, however it would not be possible to enter into a surrogacy arrangement with a relative.

And just last week, the government of Vietnam issued a decree which allows surrogacy to be performed for “humanitarian purposes”. It appears that the service will only be available to infertile couples. The law will aim to protect the privacy of all parties involved, including any children born through surrogacy. Three clinics have been allowed to perform IVF procedures involving a surrogate so far, but the Minister of Health will review this number a year after the implementation of the decree.

Reforming birth registration in Spain

In December Spain’s Minister of Justice said that the ruling Popular Party will propose changes to the Civil Register to allow for the birth registration of children born through surrogacy arrangements. Rafael Catalá said the proposed changes will bring the State in line with the ECtHR rulings in Mennesson and Labassee (see above). The amendments will also seek to prevent cases of false adoptions, with Spain’s “stolen babies” scandal still making headlines. According to Mr Catalá, this will be done by strengthening medical and biometric procedures and establishing the obligation of hospitals to pass on birth information to Civil Register offices.

Legal resources

The International Institute of Social Studies in the Hague published this week a working paper entitled ‘Force, fraud, and coercion: Bridging from knowledge of intercountry adoption to global surrogacy’ following the International Forum on Intercountry Adoption and Global Surrogacy held in August last year.

In 2014 the Hague Conference on Private International Law, which started working on surrogacy in 2011, published a study of legal parentage and the issues arising from international surrogacy arrangements based on responses by states, legal practitioners, health professionals and surrogacy agencies. Responses from 45 States are available online.

The European Parliament’s Policy Department on Citizens’ Rights and Constitutional Affairs has also prepared a comparative study on the regime of surrogacy in EU Member States in 2013, which includes detailed country reports on the legal situation in eight European countries, as well as Australia, South Africa and Russia.

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