In two cases 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.
As the New York Times recently 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:
Other than the United States, only a few countries — among them India, Thailand, Ukraine and Mexico — allow paid surrogacy. As a result, there is an increasing flow in the opposite direction, with the United States drawing affluent couples from Europe, Asia and Australia. Indeed, many large surrogacy agencies in the United States say international clients — gay, straight, married or single — provide the bulk of their business
Many countries forbid advertising foreign or domestic surrogacy services and allow only what is known as altruistic surrogacy, in which the woman carrying the baby receives payment only for her expenses. Those countries abhor what they call the commercialization of baby making and view commercial surrogacy as inherently exploitive of poor women, noting that affluent women generally do not rent out their wombs.
While Minnesota’s law on surrogacy remains a work in progress, neighboring Wisconsin’s Supreme Court upheld the validity of surrogacy agreements in a decision last year. See In re the Paternity of F.T.R., 833 N.W.2d 634 (Wis. 2013).
Hat Tip to Families Across Borders for highlighting the case.
Photo Credit: CherryX per Wikimedia Commons [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons