3
given case, elements linked to surrogacy…as manifestly incompatible with their
public policy…may disregard such provisions, insofar as the Member State
concerned provides for other means to maintain the family tie between the child
born through surrogacy and the intended parent(s) (for example, adoption).11
11. In other words, where a country does not legalise surrogacy, the public policy
exception may be used to argue that a parental relationship cannot be recognised
between the child and the non-biological but intended ‘parent’.
12. However, the proposed amendments of the Belgian Presidency qualify this
(paragraphs 18, 56 and 75) by the case law and advisory opinion12 of the European
Court of Human Rights stating that the Member State should nevertheless provide
for a mechanism for the recognition in law of the parent-child relationship with the
non-biological intended ‘parent’ (for example through the adoption of the child).
13. In essence, therefore, the public policy exception may be used initially but will, in
consequence, not protect the national competencies of Member States concerning
family and marriage.
14. Even with the public policy exception applied to cases of surrogacy, the recognition
of parenthood established abroad in contradiction to the national laws of the host
State would continue to create a grave conflict of norms and an ongoing erosion of
Member States’ competence on related matters. The Member State will still
eventually be forced to legally provide for and accept the creation of a parent-child
relationship through surrogacy, albeit not immediately.
15. The European Commission and the European Parliament have both expressed the
will that the proposed regulation would defend the best interests of the child, as
enshrined in the UN Convention on the Rights of the Child. However, the Proposed
Regulation is not in the “best interest of the child” as it continues to place the child
(and surrogate mother) in the position of being subjects of a contract. Multiple
cases have emerged of babies abandoned when they did not meet the
expectations of those who commissioned them (due to disability, race etc.).13 This
violates the child's intrinsic worth, human dignity, and fundamental rights, which is
contrary to the Convention on the Rights of the Child.14
11 Emphasis added.
12 Mennesson v. France, App. No. 65192/11, 26 June 2014, paragraphs 99-100; Advisory Opinion P16-2018-001, Request no.
P16-2018-001, Council of Europe: European Court of Human Rights, 10 April 2019 and D.B. and Others v. Switzerland, Apps.
No. 58252/15 and 58817/15, 22 November 2022, paragraphs 84-85.
13 Samantha Hawley, “Ukraine's commercial surrogacy industry leaves a trail of disasters”, ABC News,
https://www.abc.net.au/news/2019-08-20/ukraines-commercial-surrogacy-industry-leaves-disaster/11417388; Linsay de Freitas,
“Couple left ‘devastated’ after surrogate baby is born with ‘Asian’ features”, News24,
https://www.news24.com/you/parenting/couple-left-devastated-after-surrogate-baby-is-born-with-asian-features-20190822;
Jennifer Lahl and Matthew Epinette, Breeders: A Subclass of women? Center for Bioethics and Culture, 2014); Kishwar Desai,
“India’s surrogate mothers are risking their lives”, The Guardian (5 June 2012),
https://www.theguardian.com/commentisfree/2012/jun/05/india-surrogates-impoverished-die.
14 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577.
