Tutorial 4 – Surrogacy
Historically, the issue of whom the law should identify as a child’s legal parent(s) was, in
most States, relatively settled. However, uncertainty has arisen in recent decades in some
States as a result of a combination of changing family patterns and advances in medical
science. This has given rise to a number of legal developments across States, including the
law on parentage. Difficulties have sometimes arisen, however, because these
developments have not been globally uniform. States’ approaches to issues such as
paternity disestablishment (in light of DNA testing), assisted reproductive technologies and
surrogacy arrangements have varied greatly, depending on the State’s cultural, political and
social environment. As a result, there is, as yet, no international consensus on how to
establish and contest legal parentage in these circumstances.
In an era of globalization, when families cross borders with increasing frequency, these
differences in States’ domestic laws can give rise to complex questions of private
international law concerning the establishment, contestation and recognition of children’s
legal parentage. These questions implicate children’s fundamental human rights (see, e.g.,
the UN Convention on the Rights of the Child, Arts 7 and 8).
In addition, a particularly "burning issue" has come to light in recent years: it is now
well-known that surrogacy is a global business. This has created a number of challenges,
especially when surrogacy arrangements involve parties in different countries. In particular,
international surrogacy arrangements (ISAs) can often result in the difficulties described
above concerning the establishment or recognition of the legal parentage of the child(ren)
born as a result of the arrangement, sometimes rendering the child parentless. This can
have far-reaching legal consequences for all involved: for example, it may affect the child's
nationality, immigration status, the attribution of parental responsibility regarding the
child or the identity of the individual(s) under a duty to financially maintain the child, etc.
Difficulties may also arise because the parties involved in such an arrangement are
vulnerable and at risk.
Literature
● J. M. Scherpe, European Family Law Volume III, Chapter
7
Two types of surrogacy;
1. Traditional surrogacy
= the surrogate mother becomes pregnant with the sperm of the intended
father (usually by insemination, and seldom through sexual intercourse) or is
inseminated with donor sperm. As a result, the surrogate mother is genetically
related to the child.
2. Gestational surrogacy
= an embryo is created by IVF, using the egg of the intended mother (or a
donor egg) and the sperm of the intended father (or a donor sperm).
Consequently, the surrogate mother has no genetic relationship with the child
, (though she does have an epigenetic relationship with the child). In the
context of gestational surrogacy, the surrogate mother is sometimes referred
to as a ‘gestational carrier’ or ‘gestational host’.
Two types of surrogacy agreements;
1. Altruistic surrogacy agreement
= the surrogate mother is reimbursed by the intended parents up to the
amount of her reasonable pregnancy-related expenses.
2. Commercial surrogacy agreement
= the surrogate mother receives a payment beyond her reasonable
pregnancy-related expenses.
Two novel approaches to legal parenthood in surrogacy arrangements;
1. The gestational/birth test
= a woman who gives birth to a child is viewed as the legal mother of the
child, even if she is genetically unrelated to the child.
→ most jurisdictions;
a) Countries where surrogacy in both its forms (altruistic and
commercial) is outlawed => anti-surrogacy jurisdictions
- Germany
- France
Although prohibited, the arrangement is entered into the general rules
on legal parenthood: This means that the surrogate mother will be
regarded as the legal mother and her husband (if married) will be
viewed as the legal father of the child.
b) Countries where surrogacy has been ignored by the legislature and
remains unregulated
- Belgium
- Hungary
- Czech Republic
- the Netherlands
- Ireland
- Spain
Not prohibited. Legal parenthood in these altruistic surrogacy cases is
established through the application of general parentage rules.
c) countries where surrogacy is regulated whilst only an altruistic form of
surrogacy is permitted
- United Kingdom
- Greece: pre fertility approvement from the court
d) Countries where commercial surrogacy is permitted
- Ukrain
2. The genetics test
= the child’s legal parents are determined on the basis of genetics. In this
test, the genetics element should be accorded higher value than the
gestational element.
- US: in the Perry-Rogers v Fasano case they said that genetics was
the core identity of the child
, 3. The intent test
= the intent of the parties as expressed in the surrogacy agreement controls
the determination of the legal parenthood.
- US: Johnson v Calvert
A. Common Law Countries
In most common law jurisdictions, the law of the forum, in other words the lex fori, will
be used to determine the legal parenthood of a child born as a result of a cross-
border surrogacy arrangement.
- UK: despite the underlying public policy against commercial surrogacy in the
United Kingdom, the courts have generally been sympathetic to the situation
of the intended parents. The rationale concerns the welfare of the child.
- Ireland
B. Civil Law Countries
The issue of legal parenthood in cross-border surrogacy cases is usually approached
from the private international law perspective, often through the method of
recognition.
- Spain
- The Netherlands
- France
● Your national law on parentage (e.g. Civil Code, statutory
law, common law)
1. Wat houdt draagmoederschap in?
Een vrouw, de draagmoeder, draagt een kind voor de wensouders. De draagmoeder
is de juridische moeder van het kind, ook wanneer het genetisch materiaal door de
wensmoeder is geleverd. Zij is de biologische moeder.
In een strafrechtelijk verband, indien er sprake
