Surrogacy – good rulings from Europe put the UK out on a limb

The disentangling of the UK from the European Union will inevitably, over time, put us more and more out of sync with the rest of Europe. Yet in some matters, we are already starkly out of sync, and not in a good way for the UK.

Take surrogacy. Two significant new developments this year in Europe significantly restrict surrogacy arrangements. On 9 February, the European Parliament rejected a proposal for a report on surrogacy, which would have ligitimatised surrogacy. This followed a similar attempt, and similar rejection, last year. And earlier this year,  a ruling at the European Court of Human Rights (ECHR) strengthened the protection of children born to surrogates, even linking it to trafficking. (I explain more below).

These developments both follow clear condemnation of surrogacy by the European Parliament in 2014, on the grounds that surrogacy: ‘…undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity.’ (para 115).

This had itself followed a 2011 European Parliament Resolution on fighting violence against women that included ‘…the serious problem of surrogacy’ because surrogacy: ‘…constitutes an exploitation of the female body and her reproductive organs.’ (para 20). In other words, the European Parliament considers surrogacy to be one of the many forms of violence against women.

So it seems both unequivocal and clear from a European perspective that surrogacy is exploitative, in some forms is not dissimilar to trafficking, and it should have no legitimacy.

How different to the UK, where surrogacy has the ‘unequivocal support’ of our Government and Courts.

Late last year, Government minister, Baroness Chisholm, during a Parliamentary debate gave the ‘…noble Lords a clear and unequivocal message that this Government recognise the value of surrogacy as a means of helping to create new families for a range of people who might not otherwise be able to have their own children’.

She said:‘There is no doubt that surrogacy has an important role to play in our society’.

Chisholm concluded that: ’It is in that spirit of inclusiveness and equality that we look to the future and to surrogacy in the UK being updated for the 21st century.’ They are clearly looking to the Law Commission and Surrogacy UK (a campaign group) to play key roles in this.

The UK Government does not intend simply to send a signal legitimising and valuing surrogacy, but intends to change the law in the UK, without a vote, so that anyone, not just couples, can become the legal parents of children born to surrogate mothers.

This is partly because of rulings by the Courts, the most recent of which used our Human Rights Act (HRA) to, in the words of Laura Perrins: ‘facilitate the buying and selling of human infants’.

A landmark case (Re Z (No. 2) (2016)) was brought by a single British man who wanted to obtain a Parental Order after paying £30,000 to an American woman to give birth to his child. Until now only couples have been able to become the legal parents of a child born to a surrogate mother but last year a High Court judge ruled that this breaches the ‘human rights’ of single people.

Perrins explains: ‘Surrogacy law is complex. Until now it was only married couples, civil partners or couples in an ‘enduring family relationship’  who could apply for a parental order because it was recognised that a child needs a mother and father or at least two parents. However, the High Court has now ruled that not allowing a single person to apply for a parental order is discrimination.’

Consequently the Government plans to amend the Human Fertilisation and Embryology Act 2008 to remove this restriction, and in a way that needs no Parliamentary scrutiny or vote.

In other words, the Courts are incrementally weakening our laws on surrogacy and the Government is fully supporting this…with enthusiasm!

‘Where once a Human Rights Act was intended to limit state power now anyone, absolutely anyone, can go abroad and essentially purchase a baby.’ concludes Perrins.

Back to Europe. The ruling by the ECHR in January (Paradiso Campanelli vs. Italy) said that there is no obligation to recognise legal parentage if there is no biological link. What is striking about this is not just its confirmation of the need to defend the rights of children born from surrogacy agreements but it also stops the existing slippery slope towards a ‘right to a child’.

Moreover, a link between surrogacy and human trafficking was made in the Concurring Opinion of the Russian Judge Dmitry Dedov: ‘Human trafficking goes hand in hand with surrogacy arrangements. The facts of this case clearly demonstrate how easily human trafficking might be formally represented as (and covered by) a surrogacy arrangement.’  

He adds (and our Government Minsters and Judges could take note!) ‘However, the phenomenon of surrogacy is itself quite dangerous for the wellbeing of society. I refer not to the commercialisation of surrogacy, but to any kind of surrogacy.’ (emphases added).

Unlike the UK, there are a large number of European states that prohibit surrogacy and many are (more) willing to properly restrict this practice.

I have written about many of the problems with surrogacy arrangements here, particularly its impact on the most vulnerable – surrogate children and mothers.
The difference in the attitude of Europe and the UK on surrogacy is striking.  But perhaps one of the few positives to take away for those of us in the UK is that, as Brexit increasingly severs many of our links with Europe, Europe will be spared some of the pernicious influence of the UK’s attitude to surrogacy.

At least when it comes to surrogacy, Europe will be better off without Britain.