A commissioning mother is not a birth mum in surrogacy – Court

The Grand Chamber of the European Court of Human Rights recently delivered its first advisory opinion. The decision concerned the legal issues surrounding surrogacy where the Court indicated that countries are not obliged to register a “commissioning mother” in a surrogacy arrangement as birth mother in their civil registry.

Nonetheless, the Court also advised that it is in the best interests of the child to establish some legal relationship between the child and the “commissioning mother.”

ADF International, a faith-based legal advocacy organization that protects fundamental freedoms and promotes the inherent dignity of all people, was granted permission to file a written intervention in January 2019 outlining the dangers surrogacy poses to the child, the surrogate mother, and to society.

“Surrogacy,” the organization avers, “exploits women and treats children as commodities. It poses a serious threat to human dignity and the fundamental rights of all of the individuals involved. The child becomes an object for sale and is left in legal limbo. On the one hand, the Court does not oblige states to register the ‘commissioning mother’ as birth mother in their civil registry. Nevertheless, the Court makes a strong push for the legal recognition of ‘commissioning mothers’ through various other legal means including but not limited to adoption.”

It is not clear at what stage the State is required to facilitate this ‘legal relationship’, nor is it clear why the established adoption procedures need additional requirements, nor what States can do to protect women and children at risk of exploitation from this practice. This mixed message risks undermining the laws of those countries, which have already banned surrogacy, including France. There is no ‘right’ to have or ‘commission’ a child. Surrogacy poses a threat to society as it undermines the family and commercializes the most vulnerable,” said Jennifer Lea, Legal Counsel for ADF International in Strasbourg.

Surrogacy in France

In 2000, the Mennesson family “commissioned” children from a surrogate mother in California using genetic material from the father and a third party egg donor. Though the “commissioning parents” attempted to transcribe the birth certificates of the resulting twins into the French civil registry, France initially ruled that the “commissioning parents” could not be listed as mother and father as French domestic law forbids surrogacy.

In 2014, after the “commissioning parents” appealed to the European Court of Human Rights, that Court ruled that France had not violated the rights of the adults involved. However, in respect of the children, the Court ruled that the children’s genetically related “commissioning father” should be registered as their father, leaving open the question related to the “commissioning mother.” Several reviews of the case followed in domestic French courts.

The French Court of Cassation asked for an advisory opinion from the Grand Chamber of the European Court of Human Rights on the status of the non-genetically related “commissioning mother.” Now, the Court has delivered its opinion announcing that States are not obliged to recognize the “commissioning mother” as birth mother but that a legal relationship between the “commissioning mother” and the child must be established. This relationship can be established through, for example, adoption.

European laws on surrogacy

“The majority of European states prohibit surrogacy as they recognize that it violates the dignity of the child and the surrogate mother. Even the European Court of Human Rights, in its judgment, acknowledges the concerns associated with the practice of surrogacy. The genetic and emotional implications of surrogacy for children, parents, and future generations pose a threat towards the family, which is the core unit of our society. It is important to uphold these laws protecting children and the family from the raw, undignified commercialization of the human person by the surrogacy industry,” said Robert Clarke, director of European Advocacy for ADF International.

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