Surrogacy: how the law develops in response to social change

Yesterday, Claire Legras, a distinguished member of the Conseil d’Etat in France and rapporteur for the National Consultative Ethics Committee for Health and Life Sciences, contributed her perspective on the ethical considerations of surrogacy. Her piece, which posits national court case as global problem, underscores the value of discussions between judges in other jurisdictions facing similar problems. Today, Lady Justice Arden explores the international dimensions of surrogacy law, including differences in approach between French and English law.

In its recent decision in Mennesson v. France (App no. 65192/11), the Fifth Section of the European Court of Human Rights in Strasbourg ruled that surrogate children—in this case, born in the US and having US citizenship—should not be prevented from registering as French citizens, as this would be a violation of their right to respect for their private life. The Strasbourg court’s view, which is very understandable, is that nationality is an important part of a person’s identity.

France has not asked for this decision to be referred to—and thus reconsidered by—the Grand Chamber of the Strasbourg court. So it will be interesting to see whether, or to what extent, the French legislature or the French courts take account of this decision.

In Mennesson, the child was the biological child of one of the commissioning parents. In the more recent case of Paradiso and Campanelli v. Italy (App. no. 25358/12), the child was not the biological child of either of the commissioning parents; born abroad, the baby was removed from their custody on return to Italy. Strasbourg also found a violation of the child’s right to a private life in that case.

Other Convention states are also considering whether to revise their law in order to focus on the best interests of the child. Finland, for instance, is considering modifications to the ban on domestic commercial surrogacy. The Federal Supreme Court of Germany has held that an order of a Californian court, which declares the commissioning parents to be the parents of the surrogate child, should be recognised in Germany (BGH, 10 December 2014, XII ZB 463/13).

These cases demonstrate how courts across Europe are increasingly having to deal with surrogacy issues, and how those issues have now taken on an international dimension. Society is undergoing great change in its acceptance of reproductive autonomy and liberty.

It would be impossible to summarise English law on surrogacy in a few sentences. Here are some key points.

1. Agencies: Surrogacy agreements are unenforceable and agencies that make surrogacy arrangements on a commercial basis are prohibited in England, according to sections 1A and 2 of the Surrogacy Arrangements Act of 1985. That drives commissioning parents abroad.
2. Parental orders: When the commissioning parents return with a newly-born child that is biologically theirs, they should apply to the English court for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 within six months. The English court will decide whether it is in the best interests of the child to give parental responsibility to the commissioning parents. The recent Strasbourg case law may, therefore, not cause any immediate difficulty. The 2008 Act provides that at least one of the commissioning parents must be domiciled in the UK at the time of the application for the parental order. The court has held that it must take account of the commissioning parents’ good faith; it must consider whether any offence has been committed, and it is an offence to bring a child into the jurisdiction following a foreign adoption order. The court has also held that the commissioning parents do not commit this offence where the adoption order was made to meet the requirements of the court dealing with the surrogacy arrangements.
3. Birth mother’s consent: The consent of the birth mother must be proved and is ineffective if given less than 6 weeks after the birth.
4. Surrogacy payments: Before making a parental order, the court will also need to consider and authorise any payments which have been made for the surrogacy arrangements ,and which exceed the payment of the birth mother of her reasonable expenses.
5. Liberal interpretation: The courts have applied a liberal interpretation to the statutory requirements: they have to decide whether to make a parental order in the light of the fact that the child has been born and is a fait accompli. The President of the Family Division has, for instance, held that Parliament must have intended that an application for a parental order could be made outside the 6-month period (re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135).
6. Role of the courts: The role of the English court requires a high level of judicial skill, but there is a detailed statutory scheme and the role of the judge is therefore very specific. The English courts’ role is far removed from that of the Cour de Cassation in France in deciding whether to apply ethical public policy considerations in the field of nationality, as it did in Mennesson.

English law is pragmatic: it proceeds on the basis that there is no turning back and that the legislative framework is not a perfect solution to the issues of surrogacy.

7. English law is pragmatic: it proceeds on the basis that there is no turning back and that the legislative framework is not a perfect solution to the issues of surrogacy. English law is not driven by any single public policy aim but by several aims: the policy of not permitting commodification of the human body through commercial arrangements (while not preventing purely altruistic arrangements), protecting the child’s best interests, and safeguarding the interests of the birth mother. The courts and Parliament seek to balance these considerations, and it is, on occasion, difficult to do this.

Claire Legras’ contribution brought me to realise how valuable it was to discuss legal problems with judges and practitioners in other jurisdictions. Our appreciation of the problems facing us and the quality of our own law is enriched as a result.

There is another point. The reaction in France to Mennesson shows that the UK is not the only Convention state to experience, from time to time, difficulties and challenges to our deeply held beliefs as a result of advances in human rights. Whatever the strengths and weaknesses of the Convention system, the Strasbourg court is the place where there is an attempt at mediating the diverse views in Europe on ethical issues. The Strasbourg court cannot solve the problems of surrogacy from every angle, but it can survey the legal scene in the Convention states (as it did in Mennesson), and address key issues in this field.

This is a consequence of the Strasbourg court’s conception of the Convention as “a living instrument.” Its dynamic approach enables the law to develop in line with social changes. Our own common law contains similar mechanisms, and how it addresses social change is one of the themes in volume 2, Common Law and Modern Society: Keeping Pace with Change, which will be published later this year.

Image Credit: “Ada’s feet” by Christian Haugen. CC by 2.0 via Flickr.