Prof. Lima, welcome to our faculty, it is great to have you with us as Land Steiermark Fellow! Before this stay, have there been any points of contact with Austria, especially with Graz, or is this your first time here?
It is great to be here as a Land Steiermark Fellow and to be part of the REWI Fellowship Programme. I am grateful for the opportunity to work on a project that benefits from the expertise of colleagues in Graz. Before applying, I was already familiar with the work of Professor Gregor Christandl, who kindly supported my fellowship application. We worked together on the “Identities on the Move” international research project which analysed Regulation (EU) 2016/1191 on the circulation of public documents (EU Justice Programme 2014-2020).
But I had never been to Graz before taking up this fellowship and I have found both the University and the city to be lovely! I want to give a particular mention to the guided city tour organized by the Welcome Center around the beginning of my stay. It was a wonderful way to learn my way around Graz and get a sense of the city. Thank you to the amazing guide, and to Julia and Julia for arranging it!
You are preparing a draft paper on surrogacy (i.e., the agreement of a woman* to give birth to a child on behalf of (an)other person/s who will become the legal parent/s of said child), comparing the respective legal situations in Austria and the UK. What sparked your interest in doing research on this controversial topic?
My current research and teaching at Durham University focuses on family law and human rights, often from a comparative perspective. I have developed a special research interest in the conceptualisation and allocation of legal parenthood, especially in the context of assisted reproduction. Surrogacy is particularly important in this respect as it challenges default rules about motherhood. What first sparked my interest in the topic was the surrogacy law reform project undertaken by the Law Commission – the statutory independent body in England and Wales that reviews the law and recommends reform. It examined surrogacy law in the UK jointly with the Scottish Law Commission and issued a report in 2023 with proposals for changing the law to allow the intended parents to be recognised as the parent from birth, subject to requirements and safeguards. Surrogacy remains a controversial topic across European jurisdictions. Austria and the UK represent two different approaches on how to regulate surrogacy, which is why I chose this topic for my fellowship project at Graz. It seems to me that this difference in their approaches and the complicated legal and ethical aspects of surrogacy make for a very interesting comparative project!
The European Court of Human Rights (ECtHR) has been dealing with surrogacy multiple times in the past years. Which factors does the ECtHR consider to be paramount in assessing the issue of surrogacy (e.g., genetic link, traditional vs. progressive family models, etc.)? Is there a trend emerging in the law and practice of the member states of the European Convention on Human Rights, and has the margin of appreciation narrowed accordingly, or are the positions ever so divergent?
The European Court of Human Rights has the often quite difficult task of trying to find minimum common standards across a diverse range of European jurisdictions that can have very different legal approaches. This is the case with surrogacy, where European consensus with regard to its lawfulness has not yet emerged. In 2014 the Court issued its milestone Mennesson v. France judgment, followed by an Advisory Opinion in 2019 related to the same case. It concerned two children born in California through surrogacy to Mr and Mrs Mennesson, a French couple who returned to France and sought to enter their children’s birth certificates to the register of births. The French authorities at first refused to enter the birth certificates, suspecting that the children had been born through surrogacy. They later allowed the registration, but the French prosecutor sought to have it annulled.
Examining France’s refusal to recognize a legal relationship between the Mennesson couple and their children born through surrogacy, the Court found that there is no consensus in Europe on the lawfulness of surrogacy arrangements, which raised complicated ethical issues. Therefore, the margin of appreciation for States when deciding on how to regulate surrogacy was, in principle, wide. However, it also found that the legal parent-child relationship impacted on an essential part of the identity of individuals and therefore the margin of appreciation with regard to that aspect of how to regulate surrogacy is narrower.
The main factor that the Court has focused on in surrogacy cases is the best interest of the child. In the Mennesson case, it found no violation of the right to respect for family life under Article 8 ECHR, but it found a violation of the right of the children to respect for their private life under Article 8 ECHR. The negative impact of the legal uncertainty faced by the children, including on their personal identity, on their nationality, as well as on their rights to inheritance, maintenance etc. was a significant concern for the Strasbourg Court. Therefore, when examining the legal recognition of the parent-child relationship, it took the view that the best interests of the child must guide any decision.
The Court also took into consideration as particularly important the biological link between the intended father (who had provided the sperm) and the children. In its subsequent Advisory Opinion, the Court focused on the relationship with the intended mother, who was not biologically connected to the children. The Court found that the ‘general and absolute’ impossibility under French law to establish a legal relationship between the intended mother and the children was incompatible with the children’s best interests and their right to respect for private life. The Court’s view on this was confirmed in subsequent cases dealing with surrogacy, including in its 2023 judgment in K.K. v Denmark. There it reiterated that the best interests of the child are paramount and therefore the margin of appreciation of the State is reduced.
While legislative and policy debates on how to regulate surrogacy are still ongoing in some countries, as shown by the 2023 Law Commission report, jurisdictions like France, Germany and Austria that prohibit surrogacy do not seem ready to reconsider their stance. We are still not at the stage where we can say that a European consensus in favour of regulating surrogacy has emerged. But countries increasingly have to deal with the impact of cross-border surrogacy, as shown by the case law of the European Court of Human Rights. This might ultimately be what triggers legislative reform.
An argument frequently brought up against the legalization of surrogacy is the danger that women are directly (by [the threat of] violence) or indirectly (financially) forced to undergo the procedure against their genuine will, another is the risk of child trafficking. Do these arguments have merit, and how should lawmakers mitigate these risks?
Concerns about the dangers of surrogates being exploited or coerced into a surrogacy arrangement are an important part of the discussion on how and to what extent to regulate surrogacy. The same is true about ethical concerns regarding the rights and welfare of children born through surrogacy. Arguments revolving around these concerns, including feminist critiques, have been prioritized by countries such as France, Germany and Austria when deciding to ban surrogacy. Other feminist approaches regard surrogacy as emancipatory of the reproductive power of women. Yet whatever position one might assume in this debate, a pragmatic concern is that simply banning surrogacy does not stop the practice, especially when those seeking to access surrogacy may be able to travel to a jurisdiction abroad where it is permitted. In those cases, they will return with a child whose interests will – almost always – mean that it is better for the courts to recognise the intended parents as legal parents. This is the approach of English courts, which have stated that to not recognise the legal relationship between the child and the intended parents would risk leaving the child ‘legally parentless’. In other words, it would be left tied to a legal parent (the surrogate) who does not intend to parent the child and might not even live in the same country. Similarly, banning surrogacy risks driving the practice underground domestically, away from safeguards and oversights that can be implemented to protect the surrogate and the welfare of the child to be born.
Regulating surrogacy means that the appropriate safeguards and protections can be discussed and put in place. For example, in its 2023 report, the Law Commission recommended various protective mechanisms such as: independent legal advice and implications counseling for everyone involved; medical and criminal checks; supervision of the surrogacy agreement through a Regulated Surrogacy Organisation; an assessment of the welfare of the child to be born; and establishing the surrogate’s right to withdraw consent. Many jurisdictions also limit lawful surrogacy to non-commercial or so-called ‘altruistic’ surrogacy -where no payment to the surrogate is allowed apart from covering expenses- or require that at least one intended parent is genetically connected to the child to be born. Crucially, allowing surrogacy domestically enables a jurisdiction to regulate and supervise surrogacy arrangements according to domestic standards and principles, putting them under stricter scrutiny from the beginning and allowing for better protection of surrogates and children.
Will interested audiences have the opportunity to hear you speak about these issues during your stay in Graz or elsewhere (online)?
As part of my Land Steiermark Fellowship, I was invited by REWI Graz to give a presentation on UK surrogacy law on 6 November 2024. I had a wonderful time discussing the regulation of surrogacy in the UK with students and colleagues at Graz and received some very interesting questions from the audience that made me reflect on the topic. I want to thank everyone who attended and hope to be able to present more of my research before my Fellowship comes to an end. I am also usually working at my office at the Faculty (D4) and I am always happy to meet up and discuss with anyone interested in surrogacy, assisted reproduction, or family law more generally!