Résumé: Durant le quatrième séminaire des Directions d’études de l’Académie de La Haye de droit international privé, nous avons examiné la question du recours à la clause d’ordre public en matière de droit de la famille. Concrètement, il a été question d’analyser les défis que pose la maternité de substitution, ainsi que les limites et les opportunités du droit international privé dans un tel contexte.

The fourth seminar of the Directed Studies of The Hague Academy on private international law dealt with public policy and substantive justice (you will find a summary of our first, second, and third seminars on blogdroiteuropéen). In particular, this seminar addressed the private international law challenges generated by surrogacy arrangements.

For the record, surrogacy enables infertile couples or unmarried persons to become parents. Specifically, surrogacy is a technique whereby a woman –called the surrogate mother– carries a baby that she will eventually hand over to the intended parents. Usually, the surrogate mother is genetically linked to the child (traditional surrogacy). However, in gestational surrogacy cases, the baby is created thanks to a donor egg and donor sperm. Each surrogacy method can be either commercial or altruistic, depending on the existence of a financial counterpart.

Needless to say, surrogacy arrangements involve important moral and ethical considerations. In particular, opponents argue that surrogacy turns babies into commodities and enables future parents to take unfair advantage of vulnerable, often poor women and their capacity to give birth. As a result, national legislations on this topic vary to a significant degree.

National Regulations on Surrogacy and Private International Law

In light of the above, States have regulated surrogacy arrangements in different ways. For instance, while Switzerland (Article 119(2)(d) of the Swiss Constitution) and Germany (Article 1(1)(7) of the Law on the protection of embryos) prohibit surrogate motherhood, other countries, such as the United Kingdom (Surrogacy Arrangements Act 1985 and Human Fertilisation and Embryology Act 2008), allow surrogacy under strict conditions. In Spain (Article 10 of the Law 14/2006 on assisted reproductive technology) and the Netherlands, surrogacy agreements are null and void. Finally, a bunch of liberal States, such as Russia and some US states, permit surrogacy. The 2013 Comparative Study on the Regime of Surrogacy in EU Member States commissioned by the European Parliament presents most of those national variations in more detail.

For better or worse, national disparities have led to forum shopping –sometimes called procreative tourism. Accordingly, the intended parents travel to a liberal State, enter a surrogacy agreement, and go back to their State of residence with their newly-born child. If the latter State limits or prohibits surrogacy arrangements (prohibitionist State), the intended parents will certainly have to face important legal obstacles. In particular, questions regarding parenthood, recognition of the birth certificate by civil servants, as well as acquisition of nationality will arise. In those cases, and as the Mennesson case shows, private international law is often in tension with human rights law.

The Mennesson Case

In the following paragraphs, we illustrate the complexities caused by surrogacy through the well-known Mennesson v. France case, issued by the European Court of Human Rights (hereafter, ECtHR) in 2014.

In this case, French intended parents sought the « recognition » of twins born in the United States with the help of a surrogate mother . Nevertheless, the French authorities refused to enter the birth certificates in the civil register, inasmuch as surrogacy agreements are void under French law. The Court of Cassation confirmed that approach by stating that « under domestic law, it is contrary to the principle of inalienability of civil status – a fundamental principle of French law – to give effect, in terms of the legal parent-child relationship, to a surrogacy agreement, which, while it may be lawful in another country, is null and void on public-policy grounds » (Mennesson v. France, para 27).

The ECtHR first established that the French Government’s policy did not violate Article 8 ECHR, regarding the intending parents’ right to family life. Nevertheless, the Court did conclude that Article 8 had been infringed in respect of the children’s right to private life, including the right of the children to establish a relationship with their intended, genetic father.

To conclude, the intervention of the ECtHR rectified the strict application of private international law rules. Nevertheless, it is not clear whether human rights may always correct private international law results in a consistent, appropriate manner. Therefore, a regulation should be adopted, preferably at the international level.

What’s Next?

In 2010, the Council on General Affairs and Policy of The Hague Conference emphasised that the number of surrogacy arrangements increases rapidly and that significant uncertainties surround the status of children born as a result of surrogacy. In such a context, the idea of a multilateral Convention on this topic arose in 2010. Such a Convention does not aim at harmonising substantive law, but at providing a suitable private international law framework for surrogacy. In particular, the Council suggests that the recognition method represents an interesting tool to deal with international surrogacy arrangements. Nevertheless, it is not clear whether the recognition method can actually work in a highly diverse legal environment characterised by national disparities and ethical concerns.

Alexia Pato, Research assistant at the EBS University (Wiesbaden)