European Network - Church on the Move (E N R E )

Secretary General: François Becker

Representative to the NGO Conference of the Council of Europe :  Fernand Jehl

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Report of survey responses by 7 member associations of the ENRE Network

On the draft recommendation regarding surrogacy

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François Becker requested that the opinion to be sent to the drafters of the recommendation on surrogacy represent the diversity of positions of member associations and that this diversity appear, in one way or another, in the final text of the recommendation.

1. For most organisations, the text of the recommendation appears to be well balanced. Indeed, several of them oppose surrogacy. However, there are nuances regarding possible exceptions. One association is in favor of making exceptions under exceptional circumstances. Others are wary of such loopholes. There are clearly frequent misconceptions on the topic.
2. A second group of associations begins with the observation that there is no unanimity on the issue and that the subject has not really been discussed. These associations advocate a wide consultation and evaluation of concrete situations. Some points are subject to a strong consensus:

- Surrogacy should be free

- The conditions of birth must be provided to the child. The child has the right to know his/her origins including, for example, the identity of the gamete donors.

- Cases in which the surrogate mother carries an embryo from her own fertilised egg require specific consideration.

- There is a need to take into account the psychological experience of the fetus and the essential role of the surrogate mother. This role cannot be reduced to a service, defined by contract in financial terms.

- Gay couples and single people should have the right of adoption.

1. A third group does not necessarily exclude surrogacy, but draws the attention of those drafting the recommendation to the biological fact that it takes both a paternal and a maternal heritage to create life, and that a single person alone cannot, himself or herself, commit to the future of a child.
2. One member of the ENRE bureau, participating in the Conference of NGOs, asked the Secretary General of ENRE to share his proposals directly to the drafters of the recommendation. These can be summarised as follows:

Recognising the complexity of the issue and the diversity of national sensitivities, the NGO Conference recommends:

to let each country set its own rules regarding surrogacy in a protective legal framework based on universal ethical principles of informed consent, equity and the absence of malfeasance.

that each country that has not legalised surrogacy should organise a public debate that would include, in particular, the voice of women (from other countries) who have assisted a couple to have a child, as well as of adolescent children or adults born through surrogacy .

Furthermore, the Conference highlights the importance of establishing international legislative tools to allow for the direct recognition of the parentage of children born through surrogacy and thus put an end to any discrimination they may experience.

Summary written by Fernand Jehl, August 31, 2016

CONFERENCE OF INGOs TEXT ON SURROGACY

Definition
The literature (which is extensive) presents surrogacy as a reproduction method employed in the case of female infertility resulting from absence or underdevelopment of the uterus (Mayer-Rokitansky-Küster-Hauser or MRKH syndrome), malformation of the uterus or its surgical removal (hysterectomy).

The surrogate mother bears the child of a couple who have provided their own embryos. She does not usually make a genetic contribution (ovum), but the embryo develops in her uterus and, upon birth, the child is handed over to the person(s) who wanted the child, also known as the “intended parents”.

Several scenarios are possible. The intended parents may also be the biological father and mother of the child if they have not had recourse to gamete donation (neither oocyte nor sperm donation) or they have only a partial genetic link (sperm or oocyte donation), or they may have no genetic link with the child.

The terms used to describe surrogate mothers vary: they are sometimes also called “birth mother” or simply “mother” when the law is based on the principle that the mother is the person who gives birth.

The term “surrogacy” itself is also the subject of debate, with some people preferring terms such as childbearing for third parties or recourse to a surrogate mother, depending on their view of the practice.

Whereas

1. In the pan-European area, the legislation varies widely:
Surrogacy is not prohibited in Belgium, Denmark, Hungary, Ireland, Poland, Luxembourg or the Netherlands.
It is strictly prohibited in Austria, France, Germany, Italy, Spain and Switzerland.
It is allowed in Georgia, Greece, Romania, the Russian Federation, Ukraine and the United Kingdom.
Six Council of Europe member states have signed but not ratified the Oviedo Convention, 29 have ratified it and no non-member states have signed or ratified it.

The wide range of legislation makes alignment difficult.

2. Surrogacy is very controversial and triggers often opposing reactions, which are always impermeable in relation to each other. It raises ethical issues in many areas:

Moral philosophy:
Many people would hesitate when asked “Would you do it yourself?” However, couples possibly considering recourse to surrogacy, for instance, following cancer, feel there is an injustice and complain of a lack of social generosity.

Women’s right freely to decide what to do with their own bodies when they consent freely to surrogacy as opposed to their organised enslavement when they are forced into it for essentially economic reasons. Situations of enslavement prevent the exercise of free and informed consent and breach Article 4.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.1

Physical anthropology:
Women’s right to decide freely what to do with their own bodies, i.e. voluntarily to become surrogate mothers, does not prejudge who has authority over the surrogate’s body, particularly in the case of repeated failed pregnancies or of medical emergencies at the time of delivery.

Family sociology:
The legitimation of many different models of partnership outside marriage and the increasing number of patchwork families reflect the passing of the Roman conception whereby the mother was the person who gave birth and the father the person determined by marriage. Couples affected by female infertility because of the woman having no uterus (Mayer-Rokitansky-Küster-Hauser or MRKH syndrome) and who have recourse to surrogacy make clear – in good faith on the basis of the individual freedoms guaranteed by democracy – their commitment in advance to bring the child into human society and their family history through their model of parenthood.

Rights of the child:
The status of the child may be compromised if the intended parents are unable to accept the child on account of disabilities or death or of circumstances which break up the couple.

Similarly, the fate of the child is very uncertain when he or she does not match what was “ordered”, whether only in terms of the colour of his or her eyes or because of a particularly serious disability; in these circumstances, the safeguards set out in Article 1 of the Oviedo Convention2 are flouted.

3. The lower status of the surrogate mothers compared to the intended parents raises issues both of the equality of individuals and also of their equal dignity because of this ranking, thereby breaching international human rights conventions.

4. The fact that the legalisation of surrogacy in the United Kingdom has not prevented illegal forms of surrogacy demonstrates that the financial transactions are more a matter of bargaining and haggling than true transactions.

5. Repeated cases of surrogate motherhood in return for payment become a form of employment in breach of Article 21 (Chapter VII) of the Oviedo Convention.3

6. The French National Advisory Council on Ethics (CCNE) points out that: “Experience in Great Britain shows that the existence of a legal and secure system of surrogacy has not put an end to underground forms without proper medical supervision, which is not surprising. No matter where the cursor is placed, allowing exceptions leaves in a position of illegality those couples who do not fall within its scope, either because they consist of persons of the same sex, or because the woman is not affected by the pathologies which society has deemed justify recourse to surrogacy.”

7. The principle of women’s freedom to decide what to do with their own bodies does not protect surrogate mothers from maternal mortality, clandestine payment practices or blackmail that may result from repeated failed pregnancies.

8. There is a growing demand in European society for autonomy in terms of individual life choices. At the same time, Article 21 of the Oviedo Convention provides that: “The human body and its parts shall not, as such, give rise to financial gain”.

9. It is not yet possible to assess the long-term psychological consequences for the child on the basis of a representative sample. The registration of the birth of children born through surrogacy in countries where it is allowed should gradually shed light on this issue.4

10. While recognising the legitimacy of the desire for children on the part of couples unable to have them, parliament must pay great attention to the risks of abuses to which economically vulnerable women may fall victim5 and the short and medium-term consequences when particular difficulties occur during the process of reproduction and gestation.

Proposed declaration

For all these reasons, the Conference of INGOs is against the legalisation of surrogacy.

Nevertheless, recognising the great variety of particular situations encountered among the population and not wishing to become involved in a supposed conflict between freedom and dignity, the Conference of INGOs recommends that for certain very specific cases and subject to very specific conditions, strictly regulated exceptions to the prohibition should be allowed.