Council of Europe Rejects Proposal on Surrogacy Motherhood. What's the Impact?

Victoria Ferrara

10/15/16

 The Council of Europe recently rejected a proposal on surrogate motherhood. What is the Council of Europe and what does this mean to the many hopeful intended Parents who need to build their families through gestational surrogacy. Surrogacy in the U.S. continues to be a valid option for Europeans. 

The Council of Europe is an organization of European countries that seeks to protect democracy and human rights and to promote European unity by fostering cooperation on legal, cultural, and social issues. The council is headquartered in StrasbourgFrance

"The Parliamentary Assembly's rejection of the Recommendation on Surrogacy is significant because it is a refusal to adopt the position of the European Court of Human Rights, which currently gives effect to international surrogacy agreements even in countries where surrogacy is prohibited," Laurence Wilkinson, legal counsel for ADF International in Strasbourg, France, explained to Lifesite News

The European Court of Human Rights is an international court based in Strasbourg, France. It consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms - currently 471.

The proposal that was rejected was from Dr. Petra De Sutter and it called for measures which would have required states to give effect to private surrogacy arrangements.

This rejection fails to recognize the transformative and fulfilling aspects of surrogacy arrangements when they are conducted ethically and with attention and care regarding the rights of the surrogate mothers and all parties including parents and the child that is born.         

Gestational surrogacy in the United States, especially conducted through a reputable surrogacy agency, is not the exploitation of women. It is a team of people coming together to bring a wanted baby into the world. The women who become surrogates in the United States have many rights - they have legal counsel, they are able to set the terms of their compensation, they may choose their own medical doctors and medical treatment providers, and they come to surrogacy voluntarily because they want to help to create a family. It is a very beautiful and fulfilling experience for many people.

In two European cases favoring international surrogacy, issued on June 26, 2014, the European Court of Human Rights held that member countries cannot deny legal recognition to parent-child relationships established in the United States, simply because the children were born through surrogacy arrangements (which are illegal in many European countries).  According to the official press release, the Court based its ruling not on the parents' right to privacy, but on the children's rights:

The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr and Mrs Mennesson and Mr and Mrs Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children's identity within French society. The Court further noted that the case-law completely precluded the establishment of a legal relationship between children born as a result of �??lawful �?? surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.

The cases (available only  in French) are Mennesson v. France and Labasse v. France.  These cases continue to represent the status of the law in Europe.

As the New York Times reported, the Court's decision highlights a sharp divide in the acceptance of surrogacy throughout the world. Despite increasing acceptance in the United States, surrogacy remains illegal in much of Europe, including France which punishes the use of surrogacy by up to a year in prison and a fine of €15,000.  According to the Times' article, the variance in the laws has made the United States a destination for international surrogacy.

There is a reason, as stated earlier, why the United State is a favorable place for gestational surrogacy. It is because in the United States, there is no exploitation of women or children when it comes to surrogacy. Surrogate mothers have all of their rights in tact. They determine their compensation with the help of their own lawyers. They choose their medical care, and they choose the parents for whom they will carry a baby. They have rights to privacy and self-determination when it comes to medical care. Of course, there is a gestational surrogacy agreement between the surrogate mothers and the intended parents. This is a mutual agreement that is drafted and negotiated by competent lawyers for all parties.

More work needs to be done to improve the way surrogacy is conducted in other parts of the world but if parents wish to have their children in an ethical and legal way through gestational surrogacy, there is no reason to avoid or criticize surrogacy in the United States.

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