The status of children arising from inter-country surrogacy arrangements
PhD student: Dr M. Wells-Greco
Promotors: Prof G.R. de Groot, Mrs Dr S.W.E. Rutten
Duration: 1/9/2011 - 30/9/2015
PhD defence: Maastricht, 1/10/2015
With reference to a comparative review of eight legal systems, the overarching purpose of this thesis is to examine the legal aspects of parenthood and nationality following inter-country surrogacy arrangements and the influence of European and international human rights law on the determination of parentage, the establishment of nationality, and the prevention of statelessness as well as identity rights, continuation of relationship rights, and, more broadly, child protection. The aims of this research are to establish whether national laws on parenthood and the establishment of nationality sufficiently protect the interests of the surrogate-born child and the parties to a surrogacy arrangement in accordance with identifiable standards under European and international human rights law. The research is interested in what decision makers do to resolve cases of inter-country surrogacy; that is, it examines what factors courts and national authorities are considering in coming to their decisions and how and why they framed their decisions in the way that they did. This research starts from the premise that it cannot be in the best interests of children born by way of surrogacy to leave their important relationships of care outside of a legal framework of rights and responsibilities. A balance is needed, placing the best interests of the child as a primary consideration, but also respecting the balance that must be achieved between children, intending parents, the surrogate, gamete providers, and the state. The challenge is to ensure that all children enjoy human rights equally (rights to a nationality, an identity, and to establish family relationships) irrespective of a childs method of conception and birth while, at the same time, realising these rights within a child protection framework. Asking for good reasons why, in concrete cases, children raised in these families should enjoy lesser protection of their family rights seems a more child-centred approach to adopt. The research examines inter-country surrogacy arrangements through the prism of European and international human rights. It is considered that there is a childs rights imperative and such an approach requires understanding of the ways in which human rights violations may arise throughout the surrogacy process and of the ways in which states obligations under international human rights law are to be implemented. It also considers and examines the comments to date of the Human Rights Council and the Committee on the Rights of the Child. States must take concrete measures to assure the identified rights and standards are met. There is another reason to consider these human rights aspects in that such a review informs the debate on the application of any public policy exception in cases of inter-country surrogacy which, as considered, is often very relevant for many states in establishing or recognising a parental status established abroad. This analysis is particularly timely for European states given the recent judgments of the European Court of Human Rights in Paradiso and Campanelli v. Italy (Application No. 25358/12), Mennesson v. France (Application No. 65192/11) and Labassee v. France (Application No. 65941/11). In Mennesson and Labassee the Court held that these children have a right, framed in the context of a right to identity (an aspect of private life), to establish legal filiation with respect to their (genetic) father. These are very significant judgments with significant scopes of application across the Contracting States to the European Convention on Human Rights. Workable soft law and hard law solutions as possible types of regulation of surrogacy arrangements are explored. Given the differing approaches to the legal issues concerning surrogacy, this thesis explores the necessity and suitability of soft law approaches; a framework for recommended principles and guidelines is presented. The development of principles and guidelines is in response to the clear need for practical, human rights based policy guidance and to encourage states, national and regional courts, intergovernmental organisations, and human-rights treaty bodies to make use of them. The content of these principles and guidelines is provided together with state-directed recommendations.