The ECtHR and the Regulation of Transnational Surrogacy Agreements

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ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

The best interests of the child were paramount to the ECtHR’s proportionality analysis, although the Court acknowledged the serious everyday hurdles families were facing (paras 87-91; paras 66-77). According to the Court, depriving the children of filiation negatively impacts fundamental aspect of their identity protected by article 8 and conflicts with their best interests that must be taken into account in all decisions that concern them. The Court stresses that they were facing legal uncertainties as to whether or not they were French citizens (para 97; para 78). Moreover, the Court highlights that children are unable to inherit from their intending parents (para 98; para 79). The Court concludes its reasoning by stating that although the state’s aims to prevent procreative tourism and the commodification of the human body are legitimate aims under the Convention, the situation created by the French judicial practice raises serious questions regarding domestic measures’ compatibility with the best interests of the child that are of primary consideration (para 99; para 78). Thus the state went beyond its margin of appreciation.

Two aspects of these decisions are worth mentioning. First, they confirm the need for an interdisciplinary perspective in the study of regulation of transnational households. Second, the effects of these decisions on the regulation of transnational surrogacy agreements remain uncertain.

Regulation of Transnational Households and Inderdisciplinarity

These rulings illustrate that questions related to the regulation of transnational households need to be assessed using an interdisciplinary approach which necessarily cuts across the public/private, international/domestic divides that are deeply rooted in legal thought, at least in the European context.

What is at stake in these decisions is in fact the compatibility of private international law or conflict of laws rules and practices with the state’s human rights obligations. The Court is providing a test for assessing the compatibility of the deployment of the public policy exception (exception d’ordre public) with the requirements of the article 8 of the Convention, and more specifically with the proportionality or margin of appreciation criteria. While the state’s margin of appreciation needs to be wide in cases in which there is no consensus between member states and in which the issue raises important ethical and moral questions, it needs to be narrowed down in situations such as these, in which fundamental aspects of one’s identity are involved.

It follows that when deploying the public policy exception the domestic judge needs to balance the interests of the community that has expressed itself through the democratic channels by expressly prohibiting surrogacy domestically, and plaintiffs’ interest to see their right to private and family life protected (para 84; para 63).

The two rulings provide insights into the definition of the margin of appreciation device. In addition, they challenge the traditional analysis of the public policy mechanism by reinforcing the balancing of rights analysis in conflict of laws thinking. Indeed, the traditional analysis delineates fundamental domestic values and determines whether the public policy exception should be deployed based on territorial or sufficient or close links criteria.

Additional Questions and Unintended Consequences

The decisions raise additional questions and potential unintended consequences. Although they seem to allow for the recognition of parental ties in same-sex and opposite-sex families that have resorted to surrogacy, the Court’s arguments produce unintended effects that might marginalize these households.

The Court defined the interests of the child in relation to the children’s biological ties with their genetic father (para 100; para 79). It stressed that the latter are crucial for children’s identity.

While recognizing alternative ways of experiencing parenthood, the Court’s reasoning also feeds into the traditional narrative, which insists on the primacy of biological ties regarding identity and legal filiation. This argument is particularly salient in the current French domestic political and legal debate surrounding recent reform allowing same-sex married couples to adopt children (Loi no 213-404 du 17 mai 2013, ouvrant le mariage aux couples de personnes de même sexe). The emphasis on biological ties highlights the role of biology in the definition of legal categories and supports arguments according to which legal filiation should rest on procreation.

Moreover, this argument might be interpreted as lending further support to the solution that is adopted in a number of countries in transnational surrogacy cases: namely the legal recognition of the genetic father-child’s relation (See the work of the Hague Conference on Private International Law on these questions and for a study in comparative private international law: International Surrogacy Arrangements: Legal Regulation at the International Level, K. Trimmings and P. Beaumont (eds.) (2013)). If the current French radical solution, which denies any legal effect to foreign valid filiation, goes beyond state’s margin of appreciation, in light of the ECtHR’s rulings (see especially para 100; para 79) the legal recognition of the relation between the genetic father and the child might be sufficient to meet the proportionality requirement, unless the best interests of the child are interpreted broadly and suppose the recognition of both parents as legal parents. But what happens when two fathers or two mothers are listed on the foreign birth certificate? Even in the case of a different-sex couple, the lack of a legal relationship between the child and the intending mother creates uncertainties regarding inheritance rights, child custody and maintenance rights in the event of the couple’s separation, and other day-to-day parental duties.

Without further clarification of the ruling, what seems to be a progressive decision is likely to reinforce the view that only genetic relations matter when it comes to parenthood and to condone a legal solution which marginalizes intending mothers by depriving them of any legally recognized relations with their children.

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Jakob Cornides says

July 29, 2014

Once again, hypocrisy is the trademark of the ECtHR's case law. And once again the Court, instead of providing a sound analysis of the matter it is called to deal with, frames the issue as a violation of "privacy". But are there not other - more important – rights that are at stake?
What are these two decisions really about?
The facts in both cases are very similar: a couple that (due to the infertility of the female partner) cannot have children in a natural way goes to California to use the services of a surrogate mom, who agrees to have a child with the male part of the couple. (In one of the two cases, the wannabe parents were both more than 50 years old, so that their inability to have children seems to have been, rather than anything else, a normal consequence of their age…)
In these circumstances, the fact that the child is conceived in vitro (rather than through normal sexual intercourse between the father and the so-called "surrogate mother" appears to be a mere side issue. There is absolutely no doubt about the child's genetic identity: it descends, on the one hand, from the male part of the French couple who wanted to have children, and on the other hand, from the "surrogate mom". By contrast, it does not descend from the female part of the French couple. Its grandparents are the parents of the "surrogate mom", its siblings are the (pre-extant) children of the "surrogate mom", and the the children of the siblings of the "surrogate mom", if any, are its cousins.
The case before the ECtHR essentially concerned the question whether France was obliged to give legal effect to the so-called "surrogacy agreement" between a French couple and a Californian "surrogate mom", and thus legally recognize the fictitious "motherhood" of the female part of the French wannabe parents. The Court has answered that question in the affirmative.
But what is the nature of this "surrogacy agreement"?
One very interesting question - which unfortunately the Court has avoided dealing with - is whether it really is a mere service agreement (i.e. whether the "surrogate mom" is just carrying the child of the couple that want this kind of "service"), or whether the true effect is not rather that a child is being sold and bought as if it were cattle. It is hard to view the agreement as a mere service contract when in fact the child is the surrogate mom's own child: she appears to be selling not only the "service" of carrying the child for nine months and suffering the pains of giving birth, but she also seems to be selling her own gametes, if not her own child.
The second question is: how can three persons (the French couple and the American "surrogate mom") conclude an agreement that determines and re-defines the personal identity of a third person (the child)? How can the will of those three persons concluding the contract supersede the outward reality of the child's identity? (It seems from § 11 of the Menesson judgment that the two wannabe parents actually sought to mislead the French consular authorities with regard to the actual identity of the child, i.e. that they omitted any mention of the "surrogate mom". This in turn led to a criminal procedure against them, which was later discontinued under the pretext that the facts of the case had taken place abroad and were thus not punishable under French law. A somewhat strange decision, given that it was the French authorities that the couple had sought to mislead.)
In short, if a State is to give legal effect to a "surrogacy agreement" it is difficult to explain why legal effect should not be given to any other contract through which a human person is sold and bought. This precisely is the reason why France (like most other European countries) does not recognise such contracts, but considers them to be contrary to the public order. The principles of the public order are mentioned in § 18 of the Menesson judgment: the human body and the civil status of a person are "unavailable" (in French: indisponible), which means that they cannot be made the object of trade.
It is certainly regrettable that the ECtHR did not make a full and complete assessment of the matter. Instead of focussing solely on Article 8 of the Convention, it might have been worthwhile to discuss how a "surrogacy agreement" can be compatible with Article 4, given that it essentially provides for a trade in human flesh. But then of course it was not the child who had filed the application to the Court. It was the wannabe parents on their own behalf and on behalf of the child – and somehow nobody at the Court seems to have had the idea of raising the question whether in this case the two wannabe parents really had a valid claim of acting in the best interest of the child.
With regard to Article 8 (interference with the right to respect for private and family life) it is interesting to see that the Court did not find a violation of that Article in respect of the wannabe parents. By contrast, it found a violation in respect of the children, saying that they had been deprived of the possibility of obtaining the French citizenship and of developing a full-fledged family relationship with their parents, even though (undisputedly) the male part of the couple was their biological father. In that way, the French legislation had failed to take into account the best interest of the children.
This reasoning is, at best, messy. At worst, it is simply wrong. The Court should have made a greater effort to clarify which interests of the children were really at stake, and how they had been affected by the French authorities' refusal to give legal effect to the "surrogacy agreement".
On the one hand, there never was any doubt that the children were entitled to the French citizenship, given that their father was a French citizen. But as it appears, there was never any application by the children (or on their behalf) to obtain French citizenship. (See § 71 of the Menesson decision).
On the other hand, there is also no doubt that the children should have a family relationship with their father. Not only are they recognized as children of their father, but they also live together with him as a family. Nobody has prevented them from doing so.
The real issue is the legal relationship with the wannabe mother. The French authorities have – on the basis of very pertinent and factual grounds – refused to legally recognize her as the mother. Indeed, the refusal is based on the rather convincing reason that she simply is not the mother, but simply pretends to be. The real mother is the so-called "surrogacy mom". And there is nothing in the relevant part of the judgment (I refer here to §§ 96 to 101 of the Menesson judgment) to explain why the non-recognition of this pretended motherhood interferes with the private life of the children concerned.
In particular, the Court fails to make a clear distinction between the relationship of the children with the man who undisputedly is their father and their relationship with the woman who (equally undisputedly) is NOT their mother. It simple speaks of "le fait de ne pas être identifiés comme étant les enfants des premiers requérants", without any differentiation. In the end, the Court finds that the defendant State has "gone beyond" what it was allowed to do, but it fails to explain how far the State was allowed to go. We should not forget that what was at the origin of the dispute was the French authorities' refusal to transcribe a US birth certificate with a content that was incompatible with the French legal order (and, as it appears, based on false information!). Would the ECtHR have accepted it if, instead of transcribing the US birth certificate, the French authorities had issued another certificate identifying the "surrogate mom" as the mother of the children?
As a consequence of the messy reasoning, it is unclear what the two judgments really imply. Do they mean that States must from now no give legal effect to surrogacy agreements? Only to those concluded abroad, or also to those concluded domestically (including where, under domestic law, those agreements are illegal)? Does that also apply to "surrogacy agreements" through which gay and lesbian couples seek to become "parents"? Does that generally mean that such agreements must be accepted to supersede the actual genetic identity and the actual civil status of children and parents concerned?
In a recent post on this blog, Grégor Puppinck highlighted the surreptitious dissolution of the term "family" in the ECtHR's case law. These new decisions follow the same line, and accentuate it: besides the meaning of "family", they also dissolve the meaning of "parenthood". A person's identity as someone else's "father", "mother", or "child" are thus no more a factual reality, but the result of a legal fabrication (indeed, in the present case, of a contract concluded between third parties…)
I find it rather hypocritical for the Court to pretend that this decision was based on "the best interest of the child". The best interest of a child is to grow up in a stable environment and WITH ITS OWN PARENTS. But this was never planned for the children in the Menesson and Labassée cases. Instead, adults made a different plan for them, without asking them and even before they were born: they were to grow up with a woman who is not their mother. They were not going to be allowed to have any knowledge of, or contacts with, their real mothers, or their real siblings or cousins. It seems intellectually dishonest to put the "interest of the child" forward in order to justify such a practice. In actual fact the interests of children count very little when the interests of adults are concerned. The Court should at least have had the honesty of acknowledging this.
What these decisions really bring about is the de facto recognition of a "right to a child", irrespective of the personal conditions of the wannabe parents. And given that the ECHR clearly does not contain such a right, the Court had to take the detour of justifying this with the "interest of the child".