Renting Wombs is a Human Wrong, not a Human Right

Public Discourse 27 April 2016
Family First Comment: “But amid the uncertainty, one thing is clear: Surrogacy contravenes European and international law. The sheer number of laws it violates is staggering: the Charter of Fundamental Rights of the European Union (2000), the Convention on the Rights of the Child (1989) and its Protocol on the Sale of Children (2000), the Conventions on the Elimination of all Forms of Discrimination Against Women (1979), on the Adoption of Children (1967 and 1993), on Human Trafficking (2005), and on Human Rights and Biomedicine (1997). All of these documents place human dignity (as opposed to the commoditization and objectification of the human body) at their heart and outline the superior interest of children to know their origin and identity. Not least, surrogacy contravenes the law since it represents a modern form of human trafficking. This is clearly outlined by the European Parliament Resolution on Priorities and Outline of a New EU Policy Framework to Fight Violence against Women (2011), which condemns “the serious problem of surrogacy which constitutes an exploitation of the female body and her reproductive organs.” It emphasizes that “these new reproductive arrangements, such as surrogacy, augment the trafficking of women and children and illegal adoption across national borders.”

On Tuesday, March 15, a decision was made in Paris that can only be described as a victory for human rights. The Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe (PACE) rejected a report recommending the legalization of surrogacy in all forty-seven Member States.
While surrogacy arrangements can take a variety of forms—if in-vitro fertilization is used, the “birth mother” and the “genetic mother” can be different people, and it’s even possible for both biological parents to be anonymous sperm and egg donors—at its essence, surrogacy is an agreement whereby the birth mother agrees to carry a child for a couple who are unable to have children. So why describe the PACE committee’s decision as a “victory” for human rights? Shouldn’t those who are unable to have children have the option of using a surrogate?
Surrogacy is sometimes presented as a “compassionate” option for couples unable to conceive and have a child naturally. If the woman carrying the child consents and understands that she must hand over the child to the intended parents after birth, then what’s the problem? Or so the thinking goes. But this attitude glosses over some substantial complications that are not only challenging for law and policymakers, but also devastating for the parties involved in surrogacy arrangements.
A History of Problematic Litigation
Surrogacy agreements have already caused a great deal of head scratching in courts across Europe. When a woman, the “birth mother,” agrees to carry a child on behalf of a couple, questions regarding parentage, custody, and access rights are not easily answered, especially when there is a breakdown in the surrogacy agreement. Cases touching on these issues have been heard in domestic courts, as well as in the European Court of Human Rights (ECHR).
In recent years, the ECHR has made some significant—and troubling—rulings relating to surrogacy. In the cases of Labassée v. France and Menesson v. France, the court compelled France to set aside its own ordre public, which defines a child’s mother as the woman who gave birth to him or her. In Paradiso and Campanelli v. Italy, the court condemned Italy for removing from the custody of an infertile couple a child whom they had purchased from a Russian fertility clinic for €45,000. And in Laborie and Others v. France, ECHR judges ruled that same-sex couples should have a right to use surrogate mothers to construct their own version of family.
The ECHR’s decisions in these cases ignored the right of children, as set out in the UN Convention on the Rights of the Child, to know and grow up with their biological parents. There may be up to six persons claiming parental rights over a child born out of surrogacy agreements: the surrogate mother, the genetic mother (egg donor), the commissioning mother, the husband of the surrogate mother (presumption of paternity), the genetic father (sperm donor), and the commissioning father. These problematic situations are just a small sampling of surrogacy cases in Europe; there are more in the pipeline. It is highly likely that as the number of surrogacy agreements increases, so will the controversial litigation.
The proliferation of cases across Europe demonstrates that when it comes to surrogacy, confusion reigns. Both in the European Union and in the wider Council of Europe, there is little clarity in many countries concerning the legality of surrogacy. This legal uncertainty means that the courts are often faced with vexing questions when surrogacy agreements break down.
But amid the uncertainty, one thing is clear: Surrogacy contravenes European and international law. The sheer number of laws it violates is staggering: the Charter of Fundamental Rights of the European Union (2000), the Convention on the Rights of the Child (1989) and its Protocol on the Sale of Children (2000), the Conventions on the Elimination of all Forms of Discrimination Against Women (1979), on the Adoption of Children (1967 and 1993), on Human Trafficking (2005), and on Human Rights and Biomedicine (1997). All of these documents place human dignity (as opposed to the commoditization and objectification of the human body) at their heart and outline the superior interest of children to know their origin and identity. Not least, surrogacy contravenes the law since it represents a modern form of human trafficking. This is clearly outlined by the European Parliament Resolution on Priorities and Outline of a New EU Policy Framework to Fight Violence against Women (2011), which condemns “the serious problem of surrogacy which constitutes an exploitation of the female body and her reproductive organs.” It emphasizes that “these new reproductive arrangements, such as surrogacy, augment the trafficking of women and children and illegal adoption across national borders.”
But the knotty legal and policy questions around surrogacy are just the tip of the iceberg. Surrogacy also interferes with the fundamental right to family and private life – as outlined in Article 8 of the European Convention on Human Rights – of both the child and the surrogate mother. It exploits the female body and transforms children into a tradable commodity. The European Court of Human Rights has stated that “respect for private life requires that everyone should be able to establish details of their identity as individual human beings” and underlined that “an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned” (Mennesson v. France).
Exploitation and Abuse
Recognizing these problems, the European Parliament has already taken a firm stand against surrogacy by adopting the Annual Report on Human Rights and Democracy in the World 2014. This report, tabled by Romanian MEP Christian Dan Preda, condemned “the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity.”
This position confirmed the European Parliament’s earlier opposition to surrogacy, as expressed in the 2011 resolution on priorities and outline of a new EU policy framework to fight violence against women. This resolution acknowledged “the serious problem of surrogacy which constitutes an exploitation of the female body and her reproductive organs.” The European Parliament is clear in its view that the practice of surrogacy should be banned and treated as a matter of urgency in human rights instruments. The PACE would do well to follow suit.
Human rights abuses are taking place in commercial surrogacy arrangements, particularly in the “surrogacy farms” of India, where poor women carry children for wealthy couples from the West. There, and in other developing nations, the surrogacy industry is largely unregulated. The European Parliament has recognized the dangers, saying it “considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments.” The increasing number of reports of human rights abuses, such as women being held against their will for the duration of the pregnancy, is sadly unsurprising. The parallels with modern slavery and child trafficking are plain to see.
READ MORE: http://www.thepublicdiscourse.com/2016/04/16855/?utm_source=The+Witherspoon+Institute&utm_campaign=f316b4c709-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-f316b4c709-84094405

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