reforming surrogacy law

This is a guest post by Dr Marianna Iliadou, a Lecturer in Law at the University of Sussex. Her principal areas of research include cross-border surrogacy and reproductive rights. Titled ‘Surrogacy and the European Convention on Human Rights’, her PhD thesis examined the potential violation of the right to respect for private and family life by Contracting States of the ECHR that impose a blanket ban on surrogacy.

A much-debated issue with regard to surrogacy is whether one of the intended parents (or the one intended parent) should be genetically related to the surrogate-born child. In the UK, the current regime of parental orders requires one of the intended parents to have a genetic link with their surrogate-born child. The genetic link requirement did not escape the scrutiny of the Law Commissions during their provisional recommendations and their final report. A question that arises is whether keeping such requirement is compatible with the European Convention on Human Rights (ECHR or the Convention).

In this post, I will briefly outline the current genetic link requirement for parental orders to then discuss the provisional and final proposals of the Law Commissions. I will then offer a brief overview of the European Court of Human Rights’ case law on surrogacy to assess how far the recommendations align with the findings of the Court.

Current Regulation

As explained in previous posts, to transfer legal parenthood from the surrogate (and her spouse/partner, if any), intended parents need to apply for a parental order. There are different requirements that need to be fulfilled for a parental order, found in two sets of conditions. Section 54 of the Human Fertilisation and Embryology Act 2008 applies to two applicants, while s.54A applies to single applicants, and both provisions require that the intended parent, or one of the intended parents, be genetically linked to the surrogate-born child. S.54(1)(b) and s.54A(1)(b) require that ‘the gametes (of at least one) of the applicants were used to bring about the creation of the embryo’.

This does not mean that the absence of genetic link makes the surrogacy arrangement unlawful. It means that the intended parents will not be granted a parental order, and legal parenthood will not be transferred via such court order. Therefore, double donation (where both egg and sperm are donated for the creation of the embryo) prevents intended parents from obtaining a parental order. The only option for intended parents will then be adoption.

Consultation Paper and Final Proposal

In their provisional proposals through the 2019 Consultation Paper, the Law Commissions questioned whether the genetic link requirement should remain or removed. For their new pathway to surrogacy, where legal parenthood was envisaged to be established for intended parents at birth through a rigorous administrative process, they suggested that the genetic link requirement be removed. This was in line with intention being the essence and base for surrogacy, although double donation would only be allowed in cases of ‘medical necessity’. They believed, however, that the genetic link requirement for parental orders should remain for international surrogacy cases to avoid the danger of child trafficking, while they left the question open as to whether double donation should be allowed in those domestic surrogacy cases that would not qualify for the new pathway and would need to go through the parental order route.

After receiving a variety of answers to the consultation questions, the Law Commissions, in their Final Report, retreated from their previous position, holding that the genetic link requirement should remain for all different paths to parenthood. The Law Commissions held that any test of medical necessity to assess whether double donation would be permissible for intended parents would not be workable or appropriate, given the inability to provide a precise objective category of ‘medical necessity’, whereas subjective judgements would bring uncertainty and inconsistency. Therefore, the decision to recommend that the genetic link requirement remain was based on the inability to establish a test of medical necessity, and not the desirability to remove such requirement, as they do appreciate that keeping the system as is runs the risk of discrimination, particularly against single women.

But does insisting on the genetic link align with the ECHR?

Case Law of the ECtHR

Crossing the borders to access surrogacy is a reality in Europe, given the hostile surrogacy laws in many European countries. A major issue that cross-border surrogacy causes, however, is that, upon return of intended parents to their home country with their children, the domestic authorities refuse to recognise the parent-child relationship established through surrogacy abroad. A question is then raised as to whether this refusal infringes Article 8 and the right to respect for private and family life for both intended parents and surrogate-born children. Such cases reached the European Court of Human Rights (ECtHR, Strasbourg Court or simply the Court), and it is based on these findings of the Court that this post will assess the alignment of the genetic link requirement with the ECHR, rather than the Convention itself.

As already mentioned, the cases brought before the ECtHR on surrogacy rely mainly on Article 8 ECHR, an alleged violation of the applicants’ right to respect for their private and family life. It is useful to remind that Article 8 is a qualified right, which means that the protection offered to our private and family life is not absolute. Interference can be justified if it is in accordance with the law, it serves a legitimate aim and it is necessary in a democratic society. This in practice means the use of doctrines like the ‘margin of appreciation’ and proportionality. The Court considers that domestic authorities are better placed to assess their internal matters and gives them a certain leeway as to how they interfere with certain aspects of our lives. The Court then decides whether the State has overstepped this margin of appreciation. In cases which raise sensitive moral and ethical matters, such as surrogacy, the margin of appreciation is wide. Another important consideration for the scope of the leeway given to States is whether there is European consensus on this particular matter. European consensus looks at whether States offer a similar protection to the interest at hand, translating into a narrow margin of appreciation, or, otherwise, if there is disparity in the way a matter is regulated among the different Contracting States, accompanied by wide deference.

It is helpful to stress here that there is a big disparity of approaches towards surrogacy around the world, and within Europe as well, hence the lack of European consensus on its lawfulness. On the contrary, many countries in Europe either ban surrogacy or do not recognise it as a lawful practice. Some of these countries are France, Italy, Germany, Spain. This is the reason more and more cases arise before the European Court of Human Rights, as intended parents go abroad and then face the aforementioned issue of national authorities refusing to recognise the parent-child relationship.

It became clear from the very early case law of the Strasbourg Court that genetic link was used as a means of legitimising the parent-child relationship established by surrogacy abroad, even if surrogacy is unlawful domestically, and notwithstanding the lack of European consensus. In the first two cases, Mennesson v France and Labbassee v France, cases with similar facts that were decided by the Court on the same day, a different-sex couple from France undertook surrogacy in the USA. When the intended parents returned to France with their surrogate-born children, French authorities refused to recognise the legal parenthood established abroad and they refused to register the birth of the children born through surrogacy in the USA, because surrogacy is unlawful in France. The parents complained that the denial of registering the children violated their right to respect for private and family life under Article 8.

The European Court of Human Rights found no violation of the applicants’ family life or the intended parents’ private life. However, it did find a violation of the right to respect for the children’s private life, holding that not recognising the parent-child relationship legally established abroad undermined the children’s identity within French society. Based on the best interests of the children, legal parenthood should be recognised when the intended father was also the genetic father, and this was the case here in both scenarios. Both were different-sex couples where the father provided the gamete for the creation of the embryo.

The genetic bond was dearly upheld by the Court in these cases. The Strasbourg Court held that the genetic bond was ‘a component of identity’ and it led to the recognition of the intended father as the legal father. However, this was not the case for the intended mother, as in both cases, egg donation was used instead. This meant that the intended mother could not be recognised as the legal mother. Later, the Court, in its Advisory Opinion on the same case, held that when the intended father shares genetic link with the child, the recognition of the mother-child relationship between the child and the intended mother should also be recognised, but this did not have to be through birth certificate registration, as adoption was also a suitable means of recognition that would offer the same results. Interestingly, this was later confirmed not only for those intended mothers who did not share a genetic link with their surrogate-born child, but also for an intended mother who had a genetic link with her child, whom she had to adopt (D v France).

Following cases reaffirmed this position. The Court found no violation of Article 8 ECHR when in the absence of genetic link, domestic authorities refused to recognise the parent-child relationship created abroad (e.g., Paradiso and Campanelli v Italy, Valdís Fjölnisdóttir and Others v Iceland).

It is worth highlighting here that the Court has never dealt with the issue of a child having a genetic link only with the intended mother and not the intended father. It would be interesting to see whether the Strasbourg Court would then rely on the genetic link with the intended mother, although the Court has suggested that the Roman-law principle mater semper certa est, establishing that the legal mother is the one that gestates and gives birth, is compatible with the Convention (Valdis, §64).

Comments

A brief overview of the Strasbourg Court’s case law on surrogacy reveals a clear preference for genetic link. It appears that the ECtHR uses the genetic link as a factor that legitimises the parent-child relationship established through surrogacy abroad, and does not allow States to rely on their margin of appreciation. On the face of it, this suggests that persisting on the genetic link requirement domestically would be in line with the Strasbourg Court’s findings. Nonetheless, it is worth reminding that the cases brought before the ECtHR were against States where surrogacy is unlawful. In the UK, the initial suggestion was to allow double donation for domestic surrogacy arrangements through the new pathway to surrogacy, which is very different in nature from the scenarios that appear before the ECtHR.