International Surrogacy: present situation and future options
Amalia Rigon and Céline Chateau have recently authored a briefing note for the European Parliament on International Surrogacy (Regulating international surrogacy arrangements - state of play, PE 571.368, 30 August 2016).
The authors recall the state of play, for example, the Paradiso and Campanelli case (Paradiso and Campanelli v. Italy, ECtHR, application No 25358/12, 27 January 2015 — note that the case was later referred to the Grand Chamber), where the Italian State refused to recognise the child’s birth certificate, leading to the removal of the child from its family environment. However, the existence of a family life within the meaning of Article 8 ECHR depends primarily on the presence of de facto ties. In consequence, even though the commissioning parents were not considered de jure by the Italian authorities as the child’s legal parents, they were seen as its de facto social parents. The ECtHR thus found that there was a violation of the child’s right to family life, since it considered the decision to remove the child from its family environment to be an extreme measure which the state authorities should only have used as a last resort (note that the Court also stated, at paragraph 88, that “Given that the child has undoubtedly developed emotional ties with the foster family with whom he was placed at the beginning of 2013, this finding of a violation in the applicants’ case cannot therefore be understood as obliging the State to return the child to them”).
The authors point out that the EU is working within The Hague Conference on Private International Law on the creation of common rules that would enable the different national laws to operate in cross-border situations while respecting fundamental rights and ensuring legal certainty. They approve of this work at global level, as international surrogacy arrangements often imply relations between EU and third-country citizens.
Nevertheless, they suggest some action at EU level, especially in the light of free movement of persons. Without taking a position in favour or against international surrogacy arrangements, the EU could deal with the legal consequences of the status quo and work on improving the legal framework for its citizens, including its children. The authors advocate for ‘soft law’ instruments and support action at national level. The EU should also harmonise conflict of laws as in the area of succession or that of parental responsibility. According to them, the EU could even make mutual recognition of family statuses compulsory. However, realistically, EU action would have to go through enhanced cooperation given the sensitivity of the issue.
(Altalex, 10 October 2016. Article by Emmanuel Guinchard)