Citizenship and the Stateless Child: Obligations of the European Union

Rebecca J. Graham September 2014 1

Citizenship and the Stateless Child: Obligations of the European Union

Rebecca J. Graham

University of Ulster

Faculty of Social Science

Submitted for completion of

Master of Law (LLM) in Human Rights Law

2013-2014


Contents:

Acknowledgements……………………………………………………………......……....p3

Abstract………………………………………………………………………….......….....p.4

Introduction………………………………………………………………….......……......p.5

Abbreviations & Definitions…………………………………………………….......…....p.7

Literature Review…………………………………………………………….....……......p.10

Chapter 1 –Surrogacy…………………………………………………………......…......p.15

1.1 Moral panic……………………………………………………….……..…...p.18

1.2 Commercial vs. Altruistic……………………………………….……..…....p.24

1.3 Rich Mom-Poor Mom………………………………………….……………p.27

1.4 Parental Intent as a Test for parentage…………………….………...……p.31

Chapter 2- The Law……………………………………………………….………..……p.36

2.1 International Law………………………………………………..…..……..p.39

Chapter 3- Theoretical Issues:…………………………………………………....………p.45

3.1 Harmonisation: A Unified Approach………………………...……………p.45

3.2 EU Directives and Reproductive Rights…..……………………..………..p.50

3.3 Citizenship……………………………………………....………………… p.52

Chapter 4- Case Studies on Surrogacy in Law …………………...……....…..………p.60

4.1 Case studies in Law: EU v. National Law…………………..………..…. p.60

4.2 European Court of Human Rights and EU Law………………..……….p.62

Chapter 5- Models Moving Forward…………………………………………..…....... p.69

Conclusion…………………………………………………………………………....... p.73

Sources………………………………………………………………………...…….… p.74


Acknowledgements

The author would like to acknowledge the sacrifices of Mark, Connor, Brandon, and Margaret Graham whose support, love, and tolerance made pursuing this LLM possible. I would like to offer a huge thank you to Alister and Eileen McReynolds who acted as my surrogate family in Northern Ireland, making sure I saw more than the law library, and Dr. Barry H. Rodrigue who continued to edit my papers and provide support long after leaving his undergraduate classroom. I would like to especially thank my supervisor, Fionnuala Ní Aoláin who provided immense guidance and moral support, regardless of distance or geography, while remaining an academic rock star.

Dedication

This paper is dedicated to my amazing father, Rosaire Giroux, Jr. who passed during the writing of this dissertation. Rosaire represents the power of parental intention, providing me with the first hand knowledge that unquestionable parental love does not require shared genetics.


Abstract

The right to citizenship is a fundamental right that cannot be withheld due to method of

reproduction or extensively delayed when the judicial outcome is certain. This paper will

conclude that without adequate data collection, standardised regulation, and local oversight in

commercial markets, the opportunity for exploitation and human rights violations grow.

Domestic EU member state surrogacy law is no longer fit for purpose, as it does not achieve

the goals envisioned by legislation. The controversy around surrogacy is still alive and well

in the public discourse, and the political will to challenge this climate is not likely to emerge

while governments wrestle with fiscal downturns, and external wars. This paper will argue

that the European Union is well established as the authority for external competency on

matters of immigration, and negotiation with third party states. The political construction that

drives EU legislative policy adoption approach make engaging in a debate where there is no

member state consensus difficult at best. This paper will argue that the EU and member state

level judicial consensus does exist. The EU has both positive obligations to existing

international treaties, and regional competency, to establish a repository for information to

evaluate EU citizen involvement in cross-border surrogacy, and become the regional

authority to mitigate citizenship conundrums created by international market. Externally

facing by design, the EU will also be able to engage, monitor, and press for adequate


regulation, and further international treaties to prevent exploitation of all parties in the

surrogacy triad, in these foreign markets. Frameworks like the European Convention on

Adoption serve as appropriate model for surrogacy, allowing the flexibility of member state

approach to surrogacy internally, while insuring the core human rights of the child are

observed when EU citizens engage it internationally.

Introduction

Surrogacy, reproductive technologies, and medical advances, have challenged human society

legally, morally, and ethically by redefining human relationship with reproduction and

kinship.1 A panicked response to new advancements in reproductive medicine helped create

the diversity of existing legislative policy to cope with concerns about surrogacy. Some

European states remain silent about surrogacy with no legal mechanisms or policy. Others

ban the practice all together and some ban certain types but not all, further genderising the

individuals in the triad protected by law. In the vacuum of international law, a completely

new market emerged in the international community, drawing individuals seeking infertility

services into the unregulated space where exploitation can occur without oversight. This

paper will examine one problem created by the global market, state-less children, and suggest

that the European Union has positive obligations and existing powers to create a mechanism

to solve the problem on a European Community level.

Significance

When EU citizens engage with surrogacy in the international market, domestic courts spend

months coping with legal ramifications of movement, and relationship recognition. At the

end of these international arrangements, regardless of local law, a child is born with and

automatic set of rights and responsibilities that transcend birth origin, as proscribed by 1 See generally Cahn, Naomi R., The New Kinship: Constructing Donor-Conceived Families,


International Law.2 Without an external mechanism to cope with the conflicting international

and domestic systems involved, domestic courts emphasise genetic parentage in law,

narrowing the notion of family and elevating a genetic component against widely accepted

social parenting importance found in adoption standards, fostering, and common custody

matters.3 While mechanisms to evaluate trafficking and exploitation issues are important to

explore when examining surrogacy as a whole, even a blatant violation of domestic law

cannot deny a child’s right to citizenship, access to family and an adequate standard of care.4

Thus far, no one has examined the potential for a mechanism to be developed at the European

Union level to cope with citizenship of third country born surrogate children to EU citizens.

This paper will examine competency in EU Law to create such a citizenship mechanism and

suggest the EU could also encourage adequate data collect that will inform surrogacy legal

reform and the Member State level. The Destination State must also bear the burden for

providing citizenship for the child born through surrogacy. One commercial destination, the

United States, offers citizenship to the child automatically.5 Other States, like Ukraine and

India refuse to issue citizenship to a child they recognise as the child of a foreign national.6

Where an economy around a moral dilemma exists in an international realm, reactionary

domestic law becomes ill equipped to handle the problems created. Law at the European

Union level may be in a better position to engage with the growing billion-dollar surrogacy

market to promote protection and oversight for all members of the surrogacy process.

Research Methodologies

This paper will use doctrinal and theoretical research to examine articles around the position

of surrogacy in socio-legal context. Legal analysis of case law in the European Court of 2 The Convention on the Rights of the Child is the most widely ratified international treaty with specific provision for the right of citizenship for a child. 3 See parental intent section of this paper. 4 These cases and the member state legal approach will be evaluated in the case law sections. 5 U.S. Const. amend. XIV, § 1 6 Family Code of Ukraine Article 123 (2)


Justice in Luxembourg, and the European Court of Human Rights in Strasbourg, as well as

domestic case law will be examined as it engages with surrogacy and citizenship.

Harmonisation theory in EU law and the rights of citizenship will also be explored.

Abbreviations

CRC - Convention on the Rights of the Child

EU- European Union

CEJ- Court of European Justice that contains several legal mechanisms including:

ECJ-European Court of Justice

TEFEU- Treaty on the Functioning of the European Union

ART- Assisted Reproductive Technology

HRA-Human Rights Act

ECtHR- European Court of Human Rights in Strasbourg

ECHR- European Convention on Human Rights (Formally the Convention on the

Protection of Human Rights and Fundamental Freedoms)

IVF- in vitro Fertilisation

PID- Pre-implant diagnosis

ICESCR-International Covenant on Economic, Social and Cultural Rights

ICCPR- International Covenant on Civil and Political Rights


Definitions

Gamete-Viable reproductive material from which a human embryo can be created including

sperm, ovum, and fertilised egg.

Cross-border surrogacy- The use of a surrogate mother residing in a non-EU member state

or outside the national state of the intended parents.

Assisted Reproductive Technology- The use of a number of advancements in medical

procedures that aid reproduction through non-coital methods. These include IVF, PID, and

Artificial Insemination.

Altruistic Surrogacy- surrogacy that involves an unpaid surrogate mother who provides the

service. The most common surrogate is usually to a close friend or relative. The child can be

genetically related to the surrogate or completely unrelated with IVF implantation. Fees for

prenatal care and medical expenses can be paid.

Traditional Surrogacy- traditional surrogacy usually involves sperm implantation where the

surrogate mother is also the genetic mother.

Commercial Surrogacy- commercial surrogacy involves IVF of a surrogate who receives

pay for the service of gestation.


Sperm- Male reproductive material that can be donated for use in ART to fertilise and ovum

to create and embryo for implantation.

Ovum- Female genetic material that can be donated for use in ART to be fertilised to create

and embryo for implantation.

Gestational Surrogate -is when a surrogate mother is implanted with an embryo that

contains the egg and sperm of the intended parents. In cases where the intended mother is

unable to produce healthy eggs, surrogate with egg donation can be arranged. The gestational

surrogate is not biologically related to feotus.


Literature Review

Surrogacy- Ch. 1

Initially this chapter will introduce the reigning discourse around the topic of surrogacy as a

whole. The moral argument against surrogacy and the panic that has been constructed in

public discourse has led the varied shaping of the legal policy in domestic law. The

patchwork of legislation fails to confront the human rights violations it was designed to

mitigate by driving infertile couples into an unregulated international environment. Through

a historic look at surrogacy and assisted reproductive technology, this chapter will lead to the

understanding of how the legislative response has created many of the markets that cater to

those seeking to circumvent the restrictive domestic legal approach to surrogacy.

One of the major issues with surrogacy in the European Union is the inability to enforce

surrogacy contracts. Only one member state, Greece, allows surrogacy agreements to be

legally binding. Non-enforceability of a surrogacy contract undermines protection measures

for surrogates and intended parents. This non-enforceability legacy stems from a moral

panicked response to the Baby M and Baby Cotton cases.7 Catherine London calls for a

Surrogate centred approach to the enforcement and creation of contracts. She points out the

7 In re Baby M, 537 A.2d 1227 (NJ 1988) and N.Y. Domestic Relations Law

§722.859 (1) 2010 and Re C (A Minor) (Ward Surrogacy)1985, FLR 846 both sparked legislative reform in the United States and United Kingdom.


courts often use the baby selling sections prohibited in adoption and parentage laws to justify

their position.8

The notions of parentage and kinship are challenged by new reproductive technologies. Mary

Lyndon Shanley suggests that State provided access to infertility treatment reinforces one of

the “pillars to citizenship; the right to have and maintain a family”.9 But the legal framework

of parentage complicates who has access to the right family. Assisted Reproductive

Technology (ART) enables the role of mother to be separated into three roles from egg donor

and genetic mother, to gestational mother, and finally social or intended mother. For the first

time in human history, three women can enable the birth of a single child. Stuart Bridge

examines the problem of parentage in law when it engages with assisted reproductive

technologies and these new biological realities.10 While paternity in law is firmly established

to provide care and financial responsibility for offspring, social parenting by men of offspring

who are not their genetic relations is very common. The genetic link between mother and

child, through the use of ART is completely disregarded in United Kingdom law as result of

the Warnock Report and subsequent legislation.11 A woman, who donates her own eggs to a

surrogate to carry on her behalf, has no legal right or responsibility for the child, and must

apply for parental orders through court.12 A recent case in Ireland refused the genetic mother

parental rights highlighting the problem with notions of motherhood in law.13 The literature

around responses to surrogacy will be explored in detail in this section.

8 London, C., ‘Surrogacy Contracts’, Cardozo Journal of Law & Gender Vol. 18:391,

p. 394 9 Shannley, Mary Lyndon, ‘Infertility, Social Justice and Equal Citizenship’ in McClain et al (eds) 2009 Gender Equality: Dimensions of Women’s Equal Citizenship Cambridge University Press, Cambridge, p.344 10 Bridge, S. ‘Assisted Reproduction and the Legal Definition of Parentage’ in Bainham, A, et al What is a Parent? A Socio-Legal Analysis, 1999, Hart Publishing, Oxford 11 Warnock, 1984 paras. 6.6-6.8 12 Human Fertilisation and Embryology Act 1990 27(1) 13 BBC News, “Genetic Irish mother loses birth certificate right” web published, 7 November 2014, accessed 11/07/2014 <http://www.bbc.com/news/world-europe-29951319>


Law

This section will examine the legal obligations applicable to surrogacy under International

Law and examine the legislation in destination countries and EU Member States that fail to

meet these principles. Calls for reform of existing surrogacy framework range from out right

bans to international conventions and regulation. Domestic Judicial decisions continue to

find that the welfare of the child trumps the legal regimes that were established to combat the

human rights violations possible in commercial surrogacy. The result is a de facto permission

for couples to engage in commercial surrogacy markets. Current domestic legislation does

nothing to combat the situations of exploitation and commodification and drives infertile

couples into the foreign market.

Theoretical Issues:

Legal Harmonisation

Throwing aside all moral arguments for and against the surrogacy process, this chapter will

examine, how the law developed in moral panic, is still being used to disenfranchise all

members of the surrogacy process. This section will examine how European Law exercises

supremacy over Member State Law, and when the principle of subsidiary applies through the

lens of European Court of Justice decisions as set out in the authoritative volume produced by

Paul Craig and Gráinne de Búrca.14 Decisions where the European Court of Justice has

clarified how, and when it harmonises national Law, or offers new law will be examined. In

areas where the EU has a shared competency with Member States, Michael Dougan suggests

14 Craig, Paul, and Gráinne De Búrca. EU law: text, cases, and materials. 5th edition, Oxford University Press 2011


that EU Law does not require a member state consensus to take action.15 The ‘direct effect’

options in EU Law are critical to creating uniformity amongst member states making

provisions illegal in EU Law, impossible in national law. Instead of using this mechanism,

the ECJ prefers to leave national Law in tact but unenforceable.16 Increasingly Member States

are working with the ECJ to ensure EU compliance of national Law emphasising the

willingness to be bound by EU Law regardless of Euro-bashing common in public discourse.

Citizenship

This chapter will examine how EU Law can engage with obligations under citizenship to

harmonise what is already established in Member State and Strasbourg case law.

Immigration is a growing responsibility of EU law. Every citizen of a EU member State is

automatically a EU citizen, though this does not replace national citizenship.17 As a EU

citizen, individuals are affording the rights of free movement, complaint to European

Ombudsman, diplomatic and consular protection and the ability to vote in EU elections.18

European Union citizenship may be supplemental to Member State national citizenship, but

the revocation of national citizenship does not result in the loss of EU citizenship.19 This

chapter will examine how the weight of public policy against surrogacy bears in comparison

to the positive obligations all regional and domestic legal systems have towards the child

born from surrogacy. Birthright citizenship has been blamed for global inequality as well as

15 Dougan, Michael. "When worlds collide! Competing visions of the relationship between direct effect and supremacy." 2007 Common market law review 44:4 16 Arrêt de la Cour du 9 mars 1978. Administration des finances de l'État contre Société anonyme Simmenthal. Demande de décision préjudicielle: Pretura di Susa - Italie. Non-application par le juge national d'une loi contraire au droit communautaire. Affaire 106/77 17 Treaty on the Function of the European Union. Maastricht Treaty 18 http://ec.europa.eu/justice/citizen/ 19 Case C-184-99 Grelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la Neuve [2001]ECRI-6193 (31)


domestic inequality.20 How citizenship with in the EU is acquired and what weight the ECJ

has placed on EU citizenship will be explored. The section will suggest that the EU is in a

position to dialogue with other regional and domestic bodies to encourage surrogacy

standards and to create a mechanism that allows residents of the EU countries to realize their

full rights of EU Citizenship.

Case studies

This chapter will use legal analysis to examine three cases involving stateless children, D &

Others v. Belgium and, Mennesson v. France and Labasse v France, through the lens of

citizenship rights. Subsequent case studies will explore surrogacy in EU and ECHR case law

in response to restrictive Member State policy. Through the lens of citizenship, and legal

analysis, this section will explore the positive obligations overlooked in the existing legal

approach. Court decisions that pertain to surrogacy as well as EU Directives that apply to

surrogacy will be explored.

20 Shachar, Ayelet, The Birthright Lottery: Citizenship and Global Inequality 2009 Harvard University Press p. 24-27


Chapter 1: What is surrogacy?

Surrogacy has a very long history in humanity. Biblical references to surrogacy can be found

in the book of Genesis where Rachel offers her handmaid Bilhah to Jacob so that she may

have children through her.21 In fact, it is arguable that reproductive surrogacy is as old as the

history of written law. The oldest known legal source for surrogacy law can be found

Hammurabi’s code, allowing a wife who was unable to bear a child for her husband, to seek

out a surrogate to provide a child she would raise as her own.22 Strikingly, the code from

1780 B.C., offers legal protection for the wife who choses this method of reproduction for her

husband. She retains control over the maid-surrogate and the husband is barred from taking

another wife. Should she not choose the maid-surrogate, and her husband selects a concubine

instead, the concubine will not be her equal and the wife will have no parental role.23

Hammurabi’s recognition of the need to structure surrogacy in a legal framework persists

today, though the advances in reproductive technology make contemporary legal response far 21 “And she said, Behold my maid Bilhah, go in unto her; and she shall bear upon my knees, that I may also have children by her.” King James Bible Genesis 30:3 22 Hammurabi’s Code of Laws (circa 1780 B.C.) Translated by L.W. King http://www.fordham.edu/halsall/ancient/hamcode.asp#text 144-147 23 Ibid 146


more complicated. This chapter will explore what surrogacy is, how moral panic shaped the

patch worked approach in domestic law and continues to muddy concepts of parentage. The

notions of wealthy exploitation of poor surrogates will be examined along with the difference

in commercial and altruistic surrogacy.

Surrogacy is defined as: “the practice by which a woman (called a surrogate mother) becomes

pregnant gives birth to a baby in order to give it to someone who can not have children”.24 In

American law it is defined as:

“…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child's birth.”25

This simple definition avoids the controversial elements of how the reproduction occurs, and

leaves out nuances of family relationships. Hammurabi’s code must have been shaped by

some historic precedent where the wife’s right to control the maid-surrogate must have

provided some benefits to Babylonian household harmony. Reproduction was through

traditional methods, but the wife would raise the child as her own. Her input in the choice of

surrogate would help shape the genetic outcome of the child as well as the temperament of

the new household maid. For the surrogate, she could potentially remain in the service of the

household with her child beyond the end of her pregnancy. In some ways, the approach

Hammurabi made was more family oriented than contemporary law which is fixated on

external moral factors like payment for service and who may be permitted to engage in

surrogacy. Each responds to social problems in an effort to create the cultural notion of

family predominant in the society laws were shaped in. Globalization, easy access to

24 Merriam Webster Learner’s Dictionary online http://www.learnersdictionary.com/definition/surrogacy accessed 10 September 2014 25 Veilleux, Danny R,‘ Validity and Construction of Surrogate Parenting Agreement, 1990 A.L.R. Vol. 77:4 p.70.


information across great distances and the ability for humanity to move frequently has played

a significant role in highlighting why domestic legal approaches are inadequate.

Infertility occurs with in 10% of the population and therefore the drive to solve fertility

problems has led to the advancements in Assisted Reproductive Technologies (ART).26

These advancements have moved us from Hammurabi’s surrogate maids, and traditional

pregnancy methods, to laboratory conditions and medical implantation. In Vitro Fertilization

(IVF) is the most commonly known of these technologies. IVF, developed by Nobel Prize

winner, Robert G. Edwards, is the process, which an egg from a female is taken from the

body and fertilised with the male semen outside the body for implantation into a healthy

uterus.27 The eggs are cultured outside the body for 3-5 days to monitor their viability before

placing the now embryo into the uterus.28 This process started as a way to solve “male-factor

infertility” but has become the norm for successful surrogacy.29 Legal responses to surrogacy

have continued to emphasis this “male-factor” approach.

Normal conception occurs through a competitive race of viable fast swimming sperm to an

egg with the goal of penetrating the outer cell layer of the egg called the cumulus layer.30 A

number of factors can interrupt the process and halt development or prevent conception. The

natural process of reproduction requires no parental aptitude test, test of adequate resources to

raise the child, or commitment to each of the parties involved. Only after birth are the tests

for quality of parenthood examined by the State. In the case of historic parental responsibility

26 Bradley J. Van Voorhis, M.D., “In Vitro Fertilization” 2007 N Engl J Med 356 p. 379 27 "Robert G. Edwards - Facts". Nobelprize.org. Nobel Media AB 2014. Web. 16 Aug 2014. <http://www.nobelprize.org/nobel_prizes/medicine/laureates/2010/edwards-facts.html> 28 Ibid 29 Ibid 356: Figure 1 30 Lin Y and others, 'A hyaluronidase activity of the sperm plasma membrane protein PH-20 enables sperm to penetrate the cumulus cell layer surrounding the egg.' (1994) The Journal of Cell Biology 125(5) 1157.


issues, the State may assume guardianship of a child at birth and remove the child from the

biological parent in their best interest.31 In contrast, under taking reproduction through

surrogacy requires a number of tests, both medical and psychological prior to the

administration of any service or completion of reproduction.32 Each donor must be tested for

a variety of congenital genetic issues, sexually transmitted infections and health screening to

insure the highest quality of gametes and womb conditions.33 Gestational surrogacy is the

process of inserting the viable embryo material into a woman who is not genetically related to

the embryo. The surrogate hosts the embryo that may be made up of both intended parents, or

third party gametes. Traditional surrogacy can also use IVF technology, but the biological

mother of the child will also be the gestational mother.

1.2 Moral Panic

With the advancement of fertilization outside the body, new challenges to traditional

understandings of life and reproduction began to emerge. What would happen to the embryos

that were not chosen for implantation? When does life begin? Even before a successful birth,

public thought about the new procedures began to respond with worry and panic.34 Louise

31 Child Welfare Information Agency,”Parental Drug Use as Child Abuse” Children’s Welfare Agency 2012 32 For one example see the anonymous web site of the medical tourism company detailing the difference between psychological tests between Intended Parents and Gestational Surrogates. <http://www.surrogacy911.com/surrogacy/parents/psychological-screening.htm> 33 One example found on the NHS web site shows the list of tests that must be undertaken for a female receiving IVF treatment. These tests are normal wehter the clinic is public or private, though the NHS considers the potential for more relaxed conditions abroad. http://www.nhs.uk/Conditions/IVF/Pages/Why-is-it-necessary.aspx 34 Edwards, Lizzie 29 November 2013, Mail Online accessed on 16/08/2014 <http://www.dailymail.co.uk/news/article-2515585/Louise-Brown-Worlds-test-tube-baby-pays-emotional-tribute-parents.html>


Brown, born in 1978 was the first child of In Vitro Fertilisation (IVF). Since her birth, over 5

million more children have been born through the same procedure.35 The parents of Louise

Brown were married, and not using a surrogate to carry their child. Despite Biblical

references to ancient surrogacy procedures, the Christian community did not welcome

Edward’s advancements in reproductive technologies. The response was overwhelmingly

negative labeling children born from IVF as “frankenbabies”, taking away their humanity.36

The media plays a functional role in creating moral panics since; it is the intense media

coverage that creates public alarm.37 Moral panic in response to surrogacy became

overwhelming following two high profile cases “Baby M” and “Baby Cotton”. In the United

States, “Baby M.” was a case of surrogacy arrangements that fell apart. Surrogate mother,

Mary Beth Whitehead decided to back out of her contract and desired to keep the child.

When Whitehead fled to Florida with the child, the Sterns, commission couple filed a case for

breech of contract.38 Whitehead. Responses to Baby M are deeply divided. The court was

deeply skeptical of the ability of a surrogate mother to make an informed voluntary decision

to become a surrogate in the Baby M case.39 Legal scholar, Jessica Munyon points out that

this legal response is perhaps embedded in the profound mistrust for women to make

"informed reproductive decisions".40 Baby Cotton was a UK case where the surrogate, Kim

Cotton received payment for her services to an American couple. Cotton was investigated for

35 Brian, Kate. The Guardian. Online 12/07/2013 accessed 16/08/2014 http://www.theguardian.com/society/2013/jul/12/story-ivf-five-million-babies 36 Nerlich, Brigitte, Susan Johnson, and David D. Clarke. "THE FIRST ‘DESIGNER BABY’: The Role of Narratives, Cliche´ s and Metaphors in the Year 2000 Media Debate." Science as Culture 12.4 (2003): 471-498. 37 Goode, Erich & Ben-Yehuda, Nachman Moral Panics: The Social Construction of Deviance, John Wiley & Sons, e-book Jan 19, 2010 38 109 N.J. 396, 537 A.2d 1227, 1988 N.J.77 A.L.R.4th 1. 39 Supra n.37 at 1248-49 40 Munyon, Jessica, ‘Protectionism and Freedom of Contract: The Erosion of Female Autonomy in Surrogacy Decisions’, 2003 Suffolk University Law Review 36(717) p.719


baby selling when the hospital became uncomfortable with the situation.41 After the court

was forced to honor the contract, the Surrogacy Agreements Act 1985 was rushed through

Parliament. Some feminist arguments recognised that surrogacy opens pathways for women

that redefine their destiny by "freeing it from their biology".42 Others argue that surrogacy is

a form of slavery providing biological production for men without the protection of

marriage.43 The public policy disdain for commercial payment to surrogates seem to reinforce

a patriarchal notion that female reproduction is special and sacred and beyond compensation,

while feely allowing payment to male sperm donors for their reproductive efforts.44

Many arguments for surrogacy centre on the notion of blood ties and the importance of this

genetic connection for infertile couples. The use of IVF to create embryos makes it feasible

for the child to be genetically related to no one in the triad. Gestational mother, egg donor

and sperm donor could be three different people related to neither intended parent nor

surrogate. This lack of genetic connection in law makes determining parental rights tricky at

the least. Establishing who has parental rights and responsibilities without a genetic link is

complicated. Opponents are also concerned about the child’s right to know their origins but

fail to see that adoption procedures copes very well with the same circumstances in the case

of abandoned children.45 Some opponents are also concerned about the possibilities a child

might suffer from knowing it was created in a lab. In biological processes, there are two

forms of reproduction. One is asexual reproduction and the other is sexual or bi-parent

41 Anon, “Inquiry over ‘baby-for-cash deal” BBC online available http://news.bbc.co.uk/onthisday/hi/dates/stories/january/4/newsid_2495000/2495857.stm accessed 17 October 2014 42 Andrews, Lori B., ‘Surrogate Motherhood: The Challenge for Feminists, in Gostin eds. Surrogate Motherhood: Politics and Privacy, American Society of Law & Medicine, U.S.A. 1990 p. 168 43 Allen, Anita L. ‘Surrogacy, Slavery, and the Ownership of Life’ 1990 Harv. J.L. & Pub. Pol’y 13(139), 147-48 44 This will be explored in detail under the commercial vs. altruistic section of this paper. 45 Johnson, Kay. "Politics of international and domestic adoption in China." Law and Society Review (2002): 379-396.


reproduction.46 Some species can produce in the both ways when necessary though bi-

parental reproduction creates a new distinct individual biologically.47 Mammals cannot

change between reproduction paths and this kinship view of reproduction feeds the fear

around surrogacy. What if one gender or group could be made obsolete and reproduction

became an industrial process losing the specialness of the pregnancy process?48

How do you evaluate kinship in the face of new methods of reproduction legally and

socially? Socio-Legal scholar, Martin Johnson, argues the ART techniques may have

contributed to our expanded understanding and variation in parenthood make up. Divorce,

pre-marital sex, single parents, and non-traditional parents, are far more prevalent today than

they were 30 years ago.49 However, the use of these techniques is argued to reinforce the

genetic connection between parent and child and it’s importance to the parent-child

relationship.50 While genetic parenting is elevated in law and still socially preferred, this

ignores the importance of the findings regarding inter-uterine conditions and the health of the

feotus.51 Scholar, Marilyn Strathern argues that parenthood may be rooted in biology but the

social understanding of the concept changes with time, culture and who is making the

assumptions about the role.52

46 See generally Bengtsson, Bengt Olle. "Genetic variation in organisms with sexual and asexual reproduction." Journal of evolutionary biology 16.2 (2003): 189-199. 47 Pamilo, Pekka, Masatoshi Nei, and Wen-Hsiung Li. "Accumulation of mutations in sexual and asexual populations." Genetical research 49.02 (1987): 135-146. 48 See generally gender and kinship from the anthropological prospective and evaluation in Yanagisako, Sylvia Junko, and Jane Fishburne Collier. "Toward a unified analysis of gender and kinship." Gender and kinship: Essays toward a unified analysis (1987): 14-50. 49 Johnson, Martin, ‘A Biomedical Perspective on Parenthood’ in Bainham et al (eds) What is a Parent?A Socio-Legal Anaylsis Oxford, Hart Publishing 1999 p.49 50 Strathern, Marilyn., “A question of context” in J. Edwards et all. (eds), Technologies of Procreation (Manchester University Press, 1993) p.23 51 Cook, Rachel, “Donating Parenthood: Surrogacy, Gamete Donation” in Bainham et al (eds) What is a Parent ?A Socio-Legal Anaylsis Oxford, Hart Publishing 1999 p.133 52 Strathern, Marilyn., “A question of context” in J. Edwards et all. (eds), Technologies of Procreation (Manchester University Press, 1993) P. 13


The Warnock report that launched a panic response in law to surrogacy in 1984, emphasised

a negative view of the procedure, while remaining highly focused on the genetic importance

of the gametes used in the process.53 The Surrogacy Arrangements Act, 1985 was rushed

through Parliament making surrogacy contracts unenforceable and payment for surrogate

mothers illegal following the Baby Cotton case.54 Following “Baby M” and “Baby Cotton”,

surrogacy procedures began to involve gestation mothers who were not related to the child.

Calvert and Johnson, a U.S. Case, broke down the way in which law elevates gestational

parenthood over genetic parenthood by allowing the surrogate the ability to keep the child

regardless of the genetic relationship. Gestational surrogacy remains the preferred method for

the procedure but this still creates parentage issues in law as a result of legislation reform of

the original Human Fertilisation Act (2008) that will be examined later in this paper.55 While

the Warnock report highlights the paramount need for protection of genetically donated

material and the importance of genetic origins, the law still leans towards a gestational

parenting preference. Prior to the Family Law Reform Act of 1974, children born in the

United Kingdom of donor insemination were illegitimate, reinforcing the genetic importance

paternity in law over parental intention.56 Warnock inspired legislation has denied the same

importance to genetic relationship for motherhood. The Human Embryo Act that frames the

United Kingdom approach to surrogacy in law, denies the right of genetic parenthood to the

mother and confers it to the gestational mother regardless of genetic connection.57 The

sacredness of the birth process is enshrined in law while genetic links are only a factor for

paternal parentage. A solution created to over come male-factor infertility continues to

elevate male contribution about female contribution in law.

53 Warnock Report of the Committee of Inquiry into Human Fertilisation and Embryology, Crown Copy, 1984 54 Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846 55 HFEA 2008 Section 2 (33) 56 Family Law Reform Act of 1974 57 Human Fertilisation and Embryology Act 1990 section 27(1).


Advocate Julie Wallbank, argues that the resulting legal structure is ready for reform where

law has created a choice between competing notions of parentage.58 She suggests that

governments actively research surrogacy and the effect on children, where openness

regarding conception is practiced, particularly focusing on the majority of cases where there

are no legal problems while considering legal reform.59 Legal reform based on knowledge

rather than in response to fear would seem like a practical solution. Wallbank also

emphasises that the media response to cases like Baby M and Baby Cotton have played a

significant role in both shaping social opinion and legal response.60

The rub in legal policy towards surrogacy, and the obligations under international law is

largely based on the notion of human rights in cultural context or as universal. Universalist

argue that rights are basically the same regardless of the individuals location, while culturalist

argue that the rights exist in the context of the culture of the individual.61 The legal response

to surrogacy is wide and approaches are largely decided by the cultural relativism of the

threat to the society or the opportunities that the society can realize in the process. This

explains why some states have a very permissive attitude towards surrogacy while others

create idealised approaches without examining the conditions that lead to individuals seeking

surrogacy. Both the moral and the liberal approach are service centred, which hides the

positive obligations that each state has towards the resulting child that will be discussed in the

Law section of this paper.

58 Wallbank, Julie, ‘ Too Many Mothers? Surrogacy, Kinship and the Welfare of the Child’, 2002 Medical Law Review, 10:(271)p.273 59 Wallbank, Julie, ‘ Too Many Mothers? Surrogacy, Kinship and the Welfare of the Child’, 2002 Medical Law Review, 10:(271)p.294 60 Wallbank, Julie, ‘ Too Many Mothers? Surrogacy, Kinship and the Welfare of the Child’, 2002 Medical Law Review, 10:(271)p.273 61 For a brief discussion on both approaches see Bagu,K.J., “Ideological refuge v. jurisprudence of insurgency: Cultural Relativism and Universalism in the Human Rights Discourse” Warwick Student Law Review 2011, Vol 1:1


1.3 Commercial Surrogacy v. Altruistic Surrogacy

Arguments against commercial surrogacy centre on the commodification of the female body.

A number of studies indicate that maternal prenatal conditions have a greater influence on the

fetus than genetic influences.62 The hyperactive focus on genetic parenting ignores the other

conditions that influence the outcome of a successful pregnancy. This is evident in the how

UK law addresses who is allowed to profit from the surrogacy trade. Genetic material donors,

like sperm and egg donors, are paid for their services to the surrogacy triad, but the surrogate

is not allowed to receive payment for her services under UK law.63 The third-party clinic in

the middle is also permitted to make a profit. Following the “Baby M” case, a number of

U.S. lawyers jumped on the public policy bandwagon making profiting from surrogacy

against public policy. Robert D. Arenstezn, chairman of the Surrogate Parenting Committee

of the New York State Bar Association refers to surrogacy as “reproductive prostitution” in

his article, which uses the moral panic established in the minds of the country in the wake of

the famous case to support his arguments.64 Arnstezn felt as though parents should be vetted

as to their worthiness prior to surrogacy services. This is a burden that is higher than coital

parenting, which cannot be assessed until after the child is born in most cases. This barrier is

better addressed through the implementing of adoption level standards through the agreement

stage, instead of outright banning. Just as the illegality of prostitution has not eradicated the

profession, commercial surrogacy still occurs and is legal in many areas. Where commercial

62 See generally: Barker, D.J.P., “Mothers, Babies, and Disease in Later Life” (London,BMJ Publishing Group, 1994), Barker, D.J.P.,”The fetal origins of coronary heart disease” (1997) 422 Acta Paediatrica, Supplement 78-82, or Wienstock, M., “Does prenatal stress impair coping and regulation of hypothalamic-pituitary-adrenal axis?” (1997) 21 Neuroscience and Biobehanioral Reviews 1-10 or van Os, J., and Selten, J.P., “Prenatal exposure to maternal stress and subsequent schizophrenia – the May 1940 invasion of the Netherlands” (1998) 172 British Journal of Psychiatry, 324-326 63 HFEA 2008 Section 54 64 Arenstezn, R.D., “Is surrogacy against public policy? The answer is Yes.” Seton Hall Law Review Vol. 18:831, p.831


surrogacy is permitted, regulation makes the process safer and beneficial for all. The

Arnstezn approach encourages holding one member to the triad at a higher standard than

another producing a structural inequality in law.

Commercial surrogacy is also where feminist theorists were split. One group felt as though

the use of women in reproductive matters in a commoditized way emphasized the role of

women as only reproductive producers.65 Sharyn Anlue argued that the difference between

altruistic surrogacy and commercial surrogacy is but a myth that is socially constructed and

not based on a natural difference.66

A parallel to prostitution envisions surrogacy as selling space with in the body for someone

else’s reproductive gain. Reproduction is not simply a sexual pleasure. Sexual pleasure may

be the means by which traditional reproduction most usual occurs, but here the similarities

end. A gestational surrogate is hosting and facilitating the reproductive dreams of a family

unit through great pain and physical cost. A comparison to organ donation may be more

appropriate. Organ donation does not require the donor to be alive where gestational

surrogacy counts on the conditions of pregnancy to be as optimal as possible to ensure the

successful completion of pregnancy. This requires nutritional, emotional and physical support

over 40 weeks. Compensation in a surrogacy arrangement can be perceived as not for the

organ of reproduction, but for the work that gestation requires and the loss of work that could

be realised by the surrogate mother in lieu of pregnancy.

Without regulation and monitoring the exploitation feared by many surrogacy opponents is

unquestionably occurring. In India, the legalisation of commercial surrogacy and government

65 Iver Peterson, ‘Baby M Trial Splits Ranks of Feminists’, New York Times, Feb. 24, 1987 66 Sharyn Roach Anleu, ‘Surrogacy: For Love But Not For Money?’, 1992 GENDER & SOC’Y Vol.6:30, p.31-32


tax breaks for business that aid in encouraging medical tourism is coupled with the complete

lack of oversight and standards for surrogacy clinics.67 One study used for a recent

documentary emphasizing the exploitation suggests that the Indian market produces 25,000

babies a year with 12,000 going to western families.68 The wages received by the surrogate,

reported in some clinics as $7000, is 10 times the average Indian wage. In a country where

women are disproportionally devalued in society, and extreme poverty a norm for the largest

portion of the population, surrogacy is one industry where men cannot compete with women

for jobs. That does not mean surrogacy is without coercion. Writer, Kishwar Desai, sees

surrogacy as an attack on women because it occurs in the absence of law.69 Women can be

forced into surrogacy by desire to educate their children or husbands who see this as the route

to buying a house.70 Because of this Desai subscribed to the feminist notion that women are

merely valued for their reproductive potential. India’s clinic advisors like Dr. Nayana Patel,

recognise that poverty is a driving factor for Indian surrogates, but points out that the lack of

choice for the future of these women and their families is real, and many women feel great

honor in being able to provide a service that brings life to a childless couple while making

more money that it is possible for their husbands to make. The notion of the western white

woman exploiting the impoverished woman of color can be interpreted as real, but the

patriarchal nuance of this argument should not be ignored.

Everyone in the surrogacy chain is allowed to make money, from the clinics, to the gamete

donors and the legal experts involved, everyone except the surrogate mother who works 24

hours a day for 40 weeks and assumes all of the risks associated with child birth including

67 India's Surrogacy Industry Accused Of Exploiting Mothers- Journey Man Productions May, 2014, ABC Australia available: http://youtu.be/Rj3EodH7lcY 68 “Made in India” film produced by Erin Heidenreich 2014 69 Origins of Love, Keshwar Desai Simon & Schuster Ltd (May 24, 2012) 70 Vogt, Adrienne, “The Rent A Womb Boom” The Daily Beast online 01 March 2014 available at http://www.thedailybeast.com/witw/articles/2014/03/01/the-rent-a-womb-boom-is-india-s-surrogacy-industry-empowering-or-exploitative.htmlaccessed 17 October 2014


possible death. Most recommendations recognise that the failure of the surrogate to receive

payment exports to the problem rather than becomes a barrier to the practice. Where

commercial surrogacy isn’t permitted, finding a surrogate can be extremely difficult pushing

intended parents to seek alternatives internationally.71

Surrogate mothers are not the only exploited part of the surrogacy triad. Intended parents and

their wishes for a healthy child can be subjected to inflated prices an add-ons that are too

dangerous to question before the child arrives. Sex selection is still allowed in many countries

including the U.S., where males are preferred to females in many intended parent cultures.72

What is the legislative objective of public policy regarding surrogacy? Outlawing commercial

surrogacy ignores that money can be made in other areas of the process. The non-

enforceability of agreements denies legal protections for everyone in the triad. The non-

enforceability of contracts was born from the fear court of removing a child from a person of

little means and handing them over to an affluent couple illustrated by the “Baby M” or

“Baby Cotton” case.

1.4 Rich Mom-Poor Mom

Kajsa Ekis Ekman is an anti-surrogacy campaigner who focuses on the rich white woman

taking advantage of the poor woman of color, compelled into surrogacy over severe poverty.

She posits that this industry is a new industry born from the rise of abortion which poorer

women prefer to access, rather than enduring an unwanted pregnancy and choosing to give up

71 Madden, D., An Analysis of Legislative Proposals for Parentage in Assisted Reproduction and Surrogacy, Irish journal of Family Law, 2014 p.8 72 http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/5/12/going-global-forafamilywhyinternationalsurrogacyisbooming.html


their children to waiting parents. Her assessment ignores the long legal, historic, and biblical

references to surrogacy and promotes the notion of pregnancy as a sacred female state. She

describes it as a Capitalist industry creation that takes away the rights of women to control

their body, emphasising that altruistic surrogacy is preferred but concedes that the surrogate

should still be compensated.73 However, The U.S. Supreme Court struck a resounding note

on ‘freedom to contract’ and economic independence of the women declaring:

“The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genetic stock.74”

Contrary to the notion of the poor exploited third world surrogate, in the United States,

military spouses make up a significant portion of the gestational surrogates.75 Raising a

family on a military base while a partner is deployed and moving frequently dwindles career

choices for military spouses. Surrogacy an economically viable alternative allowing mothers

to parent their own children while adding family income. With regards to the notion of

exploitation of poorer women, Deidre Madden in her assessment of pending Irish legislation

highlights that forcing couples to go abroad for services because of this restriction will do

nothing to reduce exploitation.76 Judith Shklar points out the paradox of reproductive

freedom for women who wish to both obtain work and continue in a caregiving role. A

pregnant woman has the choice of "maintaining a dangerous job or postpone childbearing

73 Ekman, K.E., Being and Being Bought: Prostitution, surrogacy and the split self. 74 Johnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993) 75 10. See Ali, Lorraine, “The Curious Lives of Surrogates” 29 March 2008, online Newsweek accessed 1 October 2014 <http://www.newsweek.com/curious-lives-surrogates-84469> 76 Madden, Deidre., ‘An Analysis of Legislative Proposals for Parentage in Assisted Reproduction and Surrogacy’ 2014 Irish Journal of Family Law 2(52) p. 8


until age-related infertility reinforces the subordinate position of women in society."77 The

postponement of child bearing is often associated with wealthy, white, western, females, who

participate in a social climate where the choice between having a child and working can have

severe economic and professional effects.78 While postponement may seem like a social

choice, and has been demonized by opponents to surrogacy, the real problem may lie in

western work culture and continued female inequality. Interestingly, two major tech

companies, Apple and Facebook just offered to pay for egg freezing for their female

executives in an effort to reduce the pressure to chose between motherhood and corporate

advancement.79 The Guardian article suggests this could be seen as attempts to address

gender imbalance in the tech industry by recognising the decline in fertility for women in

their 30’s, just as their post-graduate career is taking off.

The Indian Council of Medical Research has established non-binding guidelines for clinics

with in India providing surrogacy services. The safety of surrogates is questionable without

the enforcement mechanism necessary for appropriate over sight of the clinics.80 Many

commentators highlight that surrogacy in India expands opportunity for women who are

disadvantaged in the strict caste system there.81 Opponents question the informed consent

possible for women from rural, uneducated regions, for cash amounts that would be

77 Shklar, Judith, American Citizenship 2001 eds, Harvard University Press, p.100 78 For a comprehensive view of the socialized issues around western female equality see generally: Roseberry, Lynn, and Johan Roos. Bridging the Gender Gap: Seven Principles for Achieving Gender Balance. Oxford University Press, 2014. 79 Tran, Mark, “Apple and Facebook offer to freeze eggs for female employees’ 15 October 2014, The Guardian online available at < http://www.theguardian.com/technology/2014/oct/15/apple-facebook-offer-freeze-eggs-female-employees> accessed October 15, 2014 80 Smerdon,Usha Rcngachary Symposium: The Baby Market: Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, 39 CUMB. L. REV. 15, 15 (2008) 81 See Moral and Ethical Implications, Surrogate Motherhood in India, http://web.stanford.edu/group/womenscourage/Surrogacy/surrogacy_contracts.html


significantly greater in a regulated system.82 The capitalist economic system frequently

exploits the labor of third party nationals for greater return on investment.83 No doubt, India's

position within the global capitalist system is responsible for the political views of the

surrogacy market as yet another sellable resource, and responds with a policy approach

towards non-interference in a growing market. Even in the face of gross corporate neglect,

environmental devastation and wide spread health issues caused by capitalist exploitation,

India has ignored its positive obligations to her citizens. Nowhere is this more highlighted

that the lack of government response to protect and regulate commercial markets illustrated

in the Bhopal tragedy.84

The Tissue and Cells Directive of the European Union specifically allows compensation for

donors for the expenses incurred as well as the inconveniences related to the donation.85 The

function of the womb is donated through the surrogacy process and through this lens;

commercial surrogacy that recognises the 24-hour a day role for the surrogate’s reproductive

organs inconvenience could adequately be translated as fee for service. Unlike other living

tissue donations, the tissues and cells involved in the donation of gestational surrogate are not

removed from the individual but used in situ. Gamete donors are allowed compensation for

the genetic material, because without such compensation, donors are unlikely to be found.86

82 Allis, Trevor, ‘The moral implications of motherhood by hire”, Issues in Medical Ethics Vol 5.(1) 1997 available <http://www.issuesinmedicalethics.org/~ijmein/index.php/ijme/article/download/1540/3343> accessed 1 October 2014 83 Mayer, Robert, ‘Sweatshops,Exploitation, and Moral Responsibility’ 2007 Journal of Social Philosophy Vol 38(4) 605-619 84 For a brief look at the tragedy 30 years after the incident see BBC World New look back at the incident, 2009 viewable at http://youtu.be/8Xt_Ddltzn4 85 L 102/48 DIRECTIVE 2004/23/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 31 March 2004 Ch.3 Art 12,1 86 Campbell, D., “Egg and sperm donors to be paid more compensation, Human Fertilisation And Embryology Authority approves higher payments in effort to end shortages”,The Guardian online 19 October 2011 available


Is the public policy deference to compensation for surrogate mothers for services

proportional to the effort and role they have in a process where they are the only ones

prohibited from receiving adequate compensation? By preferring altruistic surrogacy to

commercial surrogacy Ekman and other surrogacy opponents fails to see paradox of their

own devaluing of female production. Surrogacy supporters argue if the ethics of keeping

women from making an informed choice to address their extreme poverty are any better.87

The autonomy of choice for both infertile women and surrogate mothers is key consideration

for the future.

1.5 Parental Intent as Parentage

Historic approaches to surrogacy as illustrated by Hammurabi and Genesis indicate that they

most important concept in the surrogacy triad is intent to parent a child not of complete

genetic origin. Parental intent and reproductive desire drive the business of fertility

treatments. Diverse legal approaches to parenthood through assistive reproductive

technologies play a key role in the market by limiting who may have access to the

technology. Where States restrict fertility treatment to married couples only, other areas of

the global surrogacy market are more tolerant of “non-traditional” families. The broadening

of who may reproduce using ART challenges the nuclear family ideal that has become

emphasised in Western traditions. Single women can receive sperm donation and produce

children without sex. Men who are undergoing treatment for testicular cancer can freeze

sperm for future insemination of their partners. Current legal definitions of parentage in law,

<http://www.theguardian.com/society/2011/oct/19/egg-sperm-donors-more-compensation> accessed 1 October 2014 87 Deonandan, Raywat, Samantha Green, and Amanda van Beinum. "Ethical concerns for maternal surrogacy and reproductive tourism." 2012 Journal of medical ethics Vol.38:12: 742-745.


where ART is involved, elevate the genetic link of the father while eroding the genetic link of

the mother.88

Most surrogacy law focuses intently on genetic relationships. Without a genetic relationship

between intended parents and surrogate child where services are engaged internationally, free

movement may be indefensible in law.89 Clinical error has accounted for several of these

cases leaving children stuck as created orphans and intended parents without legal ability to

begin family life. Johnson suggests that genetic factors in bio-medical parenting, and the

renewed emphasis on genes because of the human genome project, have reignited the

eugenics in legal and public attitude towards parenting.90 Intention may be a factor in

criminal proceedings, but parental intention carries little weight without a genetic link,

especially when international borders and surrogacy are involved.

Public understanding of family is important to shaping political debates around surrogacy.

Anthropologist, Jeannette Edwards, produced an ethnographic inquiry of public response to

ART in Alltown, England. Her attempt to draw out a cohesive public opinion on surrogacy

found that there was no common narrative. The loudest concern she found both in her

enquiry and in parliamentary debates, was the effects that ART would have on the social

88 HFEA 2008 Section 33 89 See U.S.Department of State, Bureau of Consular Affairs statement: available < http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/assisted-reproductive-technology.html> “The Department is aware of cases where foreign fertility clinics have substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the planned genetic material turned out not to be viable or through accidental laboratory errors. The intended parents learned of these undisclosed switches only when the parents obtained DNA tests after the child’s birth, as part of the process of documenting the child’s citizenship for the purposes of obtaining a U.S. passport. Such situations can have the unfortunate consequence of leaving a child stateless or otherwise unable to leave the country of birth.” accessed 12 October 2014 90 Supra n. 45 at 62


relationships in the future.91 Even with advanced understand of the technologies, she

concluded that the lens of predictable kinship — a social creation — and it’s definable

certainty, became a key factor that shaped public opinion.92 The effect of genetic

relationships, or lack thereof, on children is often examined through adopted children. Juliet

Mitchell and Jack Goody examined the notions of nuclear family and loss through the eyes of

child evacuee’s during World War II. They posit from their findings that parents are never

simply biological, but are consistently defined by nurturing relationships in familiar

surroundings.93 Social parenting is common place in present day family make-up and it is not

uncommon to find children who describe their guardians in ever expanding ways including

step-parents, long term parental partners, grandparents, and other caring adults. Mitchell and

Goody point out that the notion of nuclear family is resigned to a single cultural point of

reference. They note that extended families in some cultures like uncles, or multiple wives,

play important parental roles. Even where two-parent nuclear family as been is seen as the

norm, like the United Kingdom, there are historic patterns of fostering children amongst

classes and the outsourcing of guardianship to boarding schools.94 As Edwards discovered,

the use of reproductive technology seems to change the discussion of acceptable family

makeup in the public mind.

Both parents seeking to adopt a child, and surrogate parents must undergo a number of

relationship measures, and fitness for caring for a child. Children born through natural

reproduction are not held to the same standards. Their fitness for parenthood is only assessed

if there is an external perception, by an authority or mandatory reporter, that a child may be

91 Edwards, Jeanette, ‘Ethnographic enquiry in north-west England’ in Edwards et al (eds) Technologies of Procreation: Kinship in the Age of Assisted Conception, New York, Routledge, 1999 p.82 92 Ibid 93 Mitchell,Juliet, Goody, Jack, ‘Family or Familiarity” in Bainham et al (eds) What is a Parent? A Socio-Legal Analysis 1999 Oxford, Hart Publishing p.116 94 Supra n. 81 at 114


neglected, abused or in a precarious situation. The steps to remove the child from the care of

their natural parent are enormous. There is a State level recognition that removing a child

from their parents should be a last resort and only occur if there is no way for the parent to

evolve their behavior.95 Gestational surrogates are the legal mothers in many parentage laws

of the European Union Member States. This ignores that most surrogates are now not

genetically related to the child. The qualification also gives the gestational mother, with no

biological ties at an elevated status of over the biological mother. 96 The biological father

maintains the same importance. If the gestational mother is married, her husband is

considered the father regardless of his involvement in the process.97 While evaluating the

consistent rise of surrogacy, it is important to remember that while international surrogacy

has significantly increased as a result of advancements in reproductive technology, there are

still very few people that engage in these services, and it is unlikely that gestational surrogacy

will replace traditional reproduction methods. Yet, the legal approach clings to archaic

notions of biological parenting modules that neither reflect social parenting reality nor impact

outcomes the law sought to resolve. Surrogacy law often stands in direct opposition to

adoption legal standards of parental intention and definition.

The child welfare principle in law continues to evolve with the introduction of new

understandings of family often engaging behavioral and psychological experts in the

evaluation process. What is appropriate for children is enhanced by new information, which

in turn shapes our public conscious. Susan Brooks, Cornell legal scholar, remarks that this

95 Chill, Paul, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings (October 2003). Family Court Review, Vol. 41, p. 457, October 2003. Available at SSRN:http://ssrn.com/abstract=1886506 96 HFEA 2008 Section 2 (33) 97 Anderson, P., ‘An Evaluation of Surrogacy Law and its Potential Development in the UK; Is there A Clear Way Forward?’ 2010 king’s Student Law Review 37, p.39


“cling” to the individual and psychoanalytic approach in parental custody issues ignores the

wide depth of studies and knowledge regarding children and families.98 Brooks and others

identify the term “family” as all of those individuals in a child’s life where an intimate

connection is sought or exists including friends, neighbors, stepparents, grandparents and

individuals in the child’s immediate support structure community.99 Brooks suggest a five-

step approach to assessing custody and parentage issues. First, to identify who the members

of the family system are, factor in the mutual interests of those members; attempt to continue

those connections where possible, and focus on family strengths not weakness.100 This

approach could apply to surrogate seeking families and the assessment of international

surrogacy arrangements, to alleviate the possibility of stranded children based on genetic

relation alone.

Surrogacy law in Europe is as varied as the language cultures. States that understand the need

to solve infertility often create legal structures to resolve the potentially harmful elements of

surrogacy. Early law shaped by moral panic occurred in an information vacuum. Thirty-five

years after Louise Brown, an international market fills the voids left in domestic law and

creates a completely new set of legal problems.

98 Brooks, Susan L., “A family systems paradigm for legal decision making affecting child custody”, Cornell Journal of Law and Public Policy Vol:6:1, 1996 p.4 99 Ibid p.14 100 ibid p.14


Chapter 2: The Law

This chapter will examine problems that current surrogacy legislation creates as citizens of

European countries pursue surrogacy in foreign markets. Cases in domestic law of the United

Kingdom, and Belgium will be discussed along with an examination of obligations for

citizenship under International Law.

There are a number of different legal systems involved in cross-border surrogacy. This

patchwork of legal frameworks requires adequate legal representation to navigate which adds

to barriers for infertile couples without financial capacity. EU Member State legal policy on

surrogacy ranges from complete prohibition, to only commercial prohibition, to no legal

framework at all.101 There are equally as many differences in approach to the status of

parentage, and how it may be achieved after surrogacy. In the United Kingdom, the

gestational mother, even if she is biologically unrelated to the child, is always the mother

under English law.102 If she is married, her husband is the legal father unless it can be proven

that he did not consent to the surrogacy.103 Parental orders for the commissioning couple can

be applied for after establishing clear genetic link.104 There are time limits and other

considerations involved in the process as well. France, Germany, the Netherlands, Italy,

Portugal, and Spain have complete bans on surrogacy. However, Italy does have provisions

that allow some infertility treatments to married couples.

101 Brunet,Laurence, et al, Directorate General for Internal Policies “A Comparative Study on the Regime of Surrogacy in EU Member State” Policy Department C: Citizens' Rights and Constitutional Affairs, p-15-16 available <http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf> 102 HFEA 2008 Sec 33 103 Ibid 104 HFEA 2008 Sec 54(1)


In the United Kingdom, surrogacy is permitted if it is altruistic only, which creates a void in

the number of available surrogates.105 Who may engage in surrogacy is also proscribed in law

leading to same-sex couples seeking surrogacy services to engage in international surrogacy

in LGBT friendly destinations like California. In the case of X and Y [Foreign Surrogacy],

the UK court was charged with issuing a parental order for two citizens who engaged in

commercial surrogacy in Ukraine. Justice Hedley made his judgment in open court to draw

attention to the problems with citizenship Law in the United Kingdom and Ukraine for

surrogate children. Hedley pointed out the United Kingdom lies between liberal and

restrictive legislative policies towards surrogacy. While commercial surrogacy is prohibited,

the ability to have a child through altruistic surrogacy exists in the United Kingdom, unlike

France, Italy or Turkey.106 Under English Law, the legal mother is considered to be the

surrogate mother, whether she has a biological connection to the child or not, and if she is

married, her husband is the legal father. Under Ukrainian Law, the surrogate mother and her

husband have no legal obligation to the child at all and the child remains the soul

responsibility of the commissioning English citizens.107 The differing legal parentage view

between the two systems left the children with no right of entry to the United Kingdom and

the intended parents had no right to remain with the children in Ukraine.108 Hedley concluded

that where a genetic link between the father, (a UK and EU citizen) and any commercial

aspects of the services in violation of the HFEA 1990 were established, there would no

possible way to deny the child entry to the UK.109 The law could never achieve the goal of

preventing commercial surrogacy because the need to reunite a child with their family was to

important. Hedley also suggested that Parliament consider these facts and reform the policy

105 Nye, Catrin & Patel, Smita “The fraught world of UK surrogacy” 20 August 2014, BBC Radio 4, The Report available http://www.bbc.com/news/magazine-28864973 accessed 21/08/2014 106 X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) Para. 3 107 Family Code of Ukraine Article 123 (2) 108 Supra n. 101 Para. 9 109 Supra n. 102 Para. 24


as established.110 Another judgment in 2011 again came to the same conclusion asking for a

change in legislation.111

With High Court decisions emphasising the need for legal reform in cross-border surrogacy,

can the judiciary intervene where politics has failed? Reform of legislation through judicial

review is difficult under UK Law. The Human Rights Act has challenged judicial review and

proportionality within the constitutional structure of the UK.112 The ultra orthodox view of

the role of judicial review was defined by Palmer as the “Wednesbury Principle”, and sees

policy making as an independent structure from judicial influence.113 Wednesbury requires a

higher level of scrutiny stating the nature of public policy must be absurd for even a

reasonable person, rather than just the decision was unreasonable.114 This strategy has

disengaged the judiciary and led to infrequent calls for testing and review of the merits of

policy.115 The individual approach to review that this principle envisions can only evaluate

the proportionality or illegality of public policy on an individual basis rather than engage

with the nature of a policy as a whole.116 Whether the judicial review process was

supervisory, as proscribed by the orthodox review, or individual rights based, as in the

evaluative process, the test of proportionality has now been firmly established as reason for

110 Supra n. 29 111 Re X&Y (Children) [2011] EWHC 3147 (Fam) Para. 40 112 Choudhry, S., Herring,J.,“The Human Rights Act: Scheme, Principles and Implementation” Europeans Human Rights and Family Law, 2010 Hart Publishers, London, p.35-73 113 Palmer,E., Judicial Review, Socio-Economic Rights and the HRA, Oxford, Hart Publishers 2009 p.152 114 This principle was established under the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 115 Choudhry, S., Herring,J.,“The Human Rights Act: Scheme, Principles and Implementation” Europeans Human Rights and Family Law , Hart Publishers, London, 2010 p.73 116 T.R.S. Allan (2006). HUMAN RIGHTS AND JUDICIAL REVIEW: A CRITIQUE OF “DUE DEFERENCE”. The Cambridge Law Journal, 65, pp 671-695


review following the decision in R v. Secretary of State for the Home Department.117

Important in Lord Steyn’s opinion in this case is the test that the proportionality of the policy

must meet the “legislative objective”.118 Lord Steyn’s opinion towards judicial review raises

two important questions for the UK approach to surrogacy arrangements and possible effects

if EU law engaged with the surrogacy debate. Does current surrogacy policy meet the

legislative objective? Are the punitive measures of the laws proportional to the violation?

Deidre Madden points out that if aim of surrogacy policy is to prevent exploitation of

surrogates then the current public policy does not achieve this goal.119

2.2 International Law

Destination States for international surrogacy also have legal considerations that attract or

discriminate based on intended parent identity. India and Ukraine do not permit homosexual

couples to receive reproductive services in their market, but in the United States caters to the

LGBT reproductive community.120 When a legally married Belgian gay couple, Peter

Meurrens and Laurent Ghilain, engaged in surrogacy in Ukraine, authorities refused to issue

documents that would allow them to return home with the child.121 The child was sent to an

orphanage and the men were denied entry into Ukraine eternally following a failed

kidnapping attempt. After two years of battle, the Belgian authorities finally issued the child,

Samuel Ghilain, a passport and allowed him to reunite with his family. Links to the final

decision were not able to be located, but burdens that will be explored in another Belgian

117 See Lord Steyn’s opinion in R v Secretary of State for the Home Department, ex part Daly [2001] UKHL 26 para 27 118 R v Secretary of State for the Home Department, ex part Daly [2001] UKHL 26 para 80 119 Madden, Deidre., ‘An Analysis of Legislative Proposals for Parentage in Assisted Reproduction and Surrogacy’ 2014 Irish Journal of Family Law 2(52) p. 8 120Craig, Olga, “Elton John baby: "Thanks to Zacahary, gay surrogacy will become more acceptable’”, 02 January 2011, The Telegraph online available http://www.telegraph.co.uk/health/8235149/Elton-John-baby-Thanks-to-Zacahary-gay-surrogacy-will-become-more-acceptable.html accessed 17 October 2014 121 Melvin, Don ‘Boy stuck for 2 years in Ukraine arrivesin Belgium’ The Washington Post online 26 February 2011 available at http://www.washingtonpost.com/wp-dyn/content/article/2011/02/26/AR2011022601088.html accessed 18 October 2014


case D and Others v. Belgium, indicate that authorities require independent proof of a genetic

link to the child and do not eagerly accept the birth certificate as issued by the Ukrainian

authorities.122 Since Ghilain case involved two gay men, Ukraine would not issue a birth

record with their legal parentage established.123 India and Ukraine also deny the surrogate

mother any right to the resulting child that results in legal orphans.124

A larger problem is the destination state approach to citizenship and national identity for

children born through surrogacy. India revoked passports for twin boys born for a German

couple leaving the children stateless and unable to travel home with their parents.125 An

Indian Court later overturned the decision and issued the documents to allow the children to

leave. Ukraine also refuses to issue citizenship to children born to foreign couples and since it

is recognized that commissioning couples are the legal parents, adoption of your own child is

not possible.126 A recently decided Belgian case in the European Court of Human Rights

involving this policy in Ukraine will be examined in the case studies section of this paper.

Access to reproductive technologies and the rights to citizenship are not only domestic legal

issues. Signatories to the predominant treaties of international law also indicate positive

obligations to establish citizenship and family. Citizenship is one of the fundamental rights of

all treaties because there is no way to effectively realise all of the other human rights and

legal remedies without its establishment. The Universal Declaration of Human Rights

(UDHR) is the founding document for the European Union. All EU Member States are

parties to the UDHR, which recognizes the family as “the natural and fundamental group unit

122 See case studies section of this paper 123 Rules for Vital Statistic Registration in Ukraine’ of 10/18/2000 No. 52/5 124 Family Code of Ukraine Article 123 (2) 125 See Dhananjay Mahapatra, ‘German Surrogate Twins To Go Home’, The Times of India (May 27, 2010), available http://articles.timesofindia.indiatimes.com/2010-05-27/india/28279835_1_stateless-citizens-balaz- surrogate-mother accessed 13 October 2014 126 supra n.104 at Chapter 18, Adoption


of society” and requires State protection.127 Individuals seeking surrogacy are attempting to

realise their rights that are naturally afforded and established as a fundamental unit of society.

Just and favorable remuneration for work and social protection when work cannot be found is

tied to human dignity in the UDHR.128 Ignoring the deeply gendered structure of this

passage, surrogate mothers take enormous physical risk working 24 hours a day for 40 weeks

to produce a child for a waiting couple. The many legal structures ignore this demanding that

it be accomplished for a common good and are above compensation. This devalues female

production and perpetuates a patriarchal approach to female work in society. States party to

the treaty have a positive obligation to insure fair pay and social protection of the surrogate,

by overseeing the process to insure that the surrogate fair, humane treatment, adequate

information to make and informed decision. Because clinics are healthcare providers, States

have an obligation to insure they are conducting themselves in a manner consistent with

domestic and international standards of care. This is again highlighted in Article 25 of the

UDHR indicating that “motherhood and childhood are entitled to special care and

assistance.’129 The non-discrimination of birth origin for children is also highlighted in this

section. While. IVF and the surrogacy market were not even imagined during the drafting of

the UDHR, it remains fundamental that the child regardless of status when born, enjoy the

same social protections – including citizenship.

In the International Covenant on Economic, Social and Cultural Rights (ICESCR) the

fundamental right of a family is again emphasised.130 Added to the passage is the positive

127 Universal Declaration of Human Rights, United Nations, G.A. Res. 217 (III), UN GAOR, 3rd Sess., Supp. No. 13, U.N. Doc. A/810 at 71 (1948) Art 16 (3) 128 Supra n. 126 at 23(3) 129 Supra n. 126 at 25(2) 130 International Covenant on Economic, Social and Cultural Rights, December 16, 1966, G.A. Resolution 2200 A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, 5 (entered into force January 3, 1976) Art 10


obligation for the establishment (emphasis added) of family, and particularly when the family

is responsible for the care of a child.131 Stateless children are often left in limbo with the

State of birth denying them obligatory care without citizenship, and the State of intended

parents refusing entry of the child until an evaluation of the circumstances can be made. The

State where surrogacy services are engaged has a firm obligation to protect surrogate mothers

and the children born from the services particularly when a clinical error leaves a child

unable to establish parentage in law. Here again, Ukraine and India are not absolved from the

positive obligation to provide the rights of citizenship to a child who may be left stateless

because of conflicting international administrative laws. In the same vein, States external to

Ukraine and India should honor the birth record established by the State, a competent

authority, unless there are clear indications of fraud. In the Belgian case that will be explored

later, the Belgian authorities refused to accept the Ukrainian document and requested proof of

maternity for a child arguing that doing so was a step to preventing child trafficking, and

abduction. The horrors of international child trafficking are real and growing.132 If surrogacy

agreements and intent were registered through a supranational body, the data collected may

be better at preventing trafficking and uncovering unethical practice. This would also serve to

collect identifying information for future access for children born from the practice. The

International Covenant on Civil and Political Rights, (ICCPR) emphasises the right to non-

discrimination under law in Article 2(1).133 ICCPR also includes special protection for

mothers before and after child birth and the non-discrimination of children based on

parentage.134 Article 24 establishes that a child has the right to acquire a nationality and right

131 Supra n. 129 at Art. 10(2-3) 132 Parry, Lizzie, ‘Chinese police bust four major baby trafficking rings rescuing 382 abducted infants and arresting nearly 2000 suspects’ published 28 February 2014, Daily Mail, online available < http://www.dailymail.co.uk/news/article-2570484/Chinese-police-bust-four-major-baby-trafficking-rings-rescuing-382-abducted-children-arresting-nearly-2-000-suspects.html> accessed 13 October 2014 133 International Covenant on Civil and Political Rights, December 19, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Session, Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, 172 (entered into force Mar. 23, 1976) at Art 2(1) 134 Supra n. 132 at Art 10 (2&3)


to acquire protection without discrimination as to birth origin or social origin.135 Unlike

ICESCR, where rights under the convention must be progressively realised, ICCPR is a

binding justiciable document.136

The Convention on the Rights of the Child (CRC) is the most widely ratified of all of the

United Nations treaties.137 All domestic and regional treaty bodies accept the principles of

legal decisions should be based on the best interest of the child, and frequently refer back to

the Convention as a primary body for establishing this principle as a matter of common law.

Once a child is born, questions of reproduction methods, commercial aspects of the process

or clinic regulation are cannot create punitive measures against the child. The non-

discrimination of children based on birth status is enshrined in Article 2 of the CRC and

confers a positive obligation on signatory States to prevent such discrimination, especially in

law.138 Article 7 of CRC deals with the State’s positive obligations to establish citizenship.

This obligation should extend towards commercial surrogacy States and the intended parent

home State.139 Ukraine fulfills the obligation to register the surrogate child at birth but denies

even temporary nationality.140 Where national law conflicts with the right to acquire

nationality, the signatories have an obligation to change them to prevent the stateless child.

Interestingly, the United States has not ratified the Convention on the Rights of the Child, yet

treats children born through surrogacy as US citizens for the purpose of issuing birth and

travel documents. The United Kingdom has ratified the treaty but placed interpretive

135 Supra n. 132 at Art 24 136 Supra n.129 Art. 2(1) states that the parties shall pursue ICESCR rights “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”. 137 Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49 138 Supra n. 136 at Art. 2 (1&2) 139 Surpa n. 136 at Art 7 (1&2) 140 Supra n. 123


guidance in the ratification to declare its understanding of the term 'parent' in the treaty tying

this definition specifically to national law.141 In 2008, the United Kingdom withdrew

reservations initially communicated regarding citizenship and the right to remain.142 The

European Union is committed to recognizing international frameworks within legislation as

will be discussed in the harmonisation section of this paper. But can EU Law step in an

harmonise domestic European law?

141 '(b) The United Kingdom interprets the references in the Convention to `parents' to mean only those persons who, as a matter of national law, are treated as parents. This includes cases where the law regards a child as having only one parent, for example where a child has been adopted by one person only and in certain cases where a child is conceived other than as a result of sexual intercourse by the woman who gives birth to it and she is treated as the only parent' 142 See Status of ratification, Reservations and declarations from United National Web site available at <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en> accessed on 1 October 2014 ’On 18 November 2008, the Government of the United Kingdom of Great Britain and Northern Ireland informed the Secretary-General that it had decided to withdraw the following reservations made upon ratification: “…..the Government of the United Kingdom withdraws the following reservations, made at the time of ratification of the Convention:(c) The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.’


Chapter 3 Theoretical Issues

This chapter will evaluate the competency of European Union Law to regulate one key factor

of the legal problems created by the cross-border surrogacy. The first section will examine

how EU Law and the European Court of Justice harmonise the differences in Member State

Law and when it exercises EU legal supremacy to national Law. The second section will

examine what EU citizenship is, and if EU citizenship could play a role in creating a

mechanism to address citizenship conundrums in cross-border surrogacy.

3.1 Harmonisation: Unified approach

How does EU develop and harmonise contentious Member State policy?

European Union Law must be restricted to areas of its competency conferred to the legal

body by the Member States to realise the objectives in the treaties established in EU Law.143

In areas lacking Treaty proscribed competencies, EU Law uses the principle of subsidiarity

when it is clear that a goal cannot be achieved by Member States or where the EU is in a

better position to achieve that goal.144 The core areas of competency of EU Law have grown

from the beginnings established in TFEU145 following Amsterdam146 and Lisbon147

enhancements. The approach of the European Court of Justice to the supremacy and direct

effect of EU Law on member states has also evolved since its early rulings. The supremacy of

EU Law over Member State Law is seen as complete when it is exercised in areas of EU

143 European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01, Art 5(2) 144 Supra n.142 at 5(3) 145 European Union, Treaty Establishing the European Community (Consolidated Version), Rome Treaty, 25 March 1957 146 European Union, Treaty on European Union (Consolidated Version), Treaty of Amsterdam, 2 October 1997, 147 Supra n. 142


competency.148 Article 288 TFEU establishes that regulations shall be binding in “its

entirety” and applicable in all Member States. This article also establishes that National Law

must then adopt EU Law into the national system through methods that can be shaped by that

Member State. When a provision in EU Law does not already exist in National Law of a

Member State, the substitution and direct effect provisions apply EU Law directly into

National Law.149 These were principles established in Costa v ENGEL to ensure that EU law

remained effective while states knowingly abdicated their sovereignty.150 This has not been

without contention. Member State Constitutional Courts have pushed back on ECJ notions of

direct effect established in Costa. The German Constitutional Court rulings in the 1st Solange

case questioned whether the direct effect principle could apply to fundamental rights in

German Law when EU Law lacked a codified set of rights.151 Twelve years later, the German

Constitutional Court rolled back its firm stance, and included an “as long as” principle,

stating that the court would not question EU Law if the same rights existed in German

Law.152 The German court retained the right to interpret new EU Law against the German

Constitution. Since Costa, and as a result of the Solange cases, there has been a subtle shift

from direct effect to cooperation between national systems. The ECJ ruled in the

Simmenthal153 case that it is the duty of a national legal system to set aside a law that

conflicts with EU Law, but doesn’t require the National Law to be void.154 This is a distinct

148 Craig, Paul, and Gráinne De Búrca. EU law: text, cases, and materials. 2011 Oxford University Press, p.256 149 Ibid p.932 150 Case 6/64 Costa v ENGEL [196] ECR 585.593 151 Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle für Getreide und Futtermittel (BVerfGE 37, 271; 1974 2 CMLR 540) 152 in Wünsche Handelsgesellschaft (BvR 2, 197/83; 1987 3 CMLR 225) 153 Arrêt de la Cour du 9 mars 1978. Administration des finances de l'État contre Société anonyme Simmenthal. Demande de décision préjudicielle: Pretura di Susa - Italie. Non-application par le juge national d'une loi contraire au droit communautaire. Affaire 106/77 154 Judgment of the Court of 22 October 1998. Ministero delle Finanze v IN.CO.GE.'90 Srl, Idelgard Srl, Iris'90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl. Reference for a preliminary ruling: Pretura circondariale di Roma - Italy.


shift from supremacy, as envisioned in Costa, to a nuanced approach following the Solange

cases. Dougan suggests this has created a cooperative relationship with national judicial

systems. However, supremacy of EU Law can provide “legal effects in the national legal

system…without the need for a Community norm to be clear.”155 Increasingly national courts

are interfacing with the ECJ to insure compliance indicating a clear willingness on the part of

the State to be subject to ECJ rulings.

Over the past decade, there is an increased need for a European level approach to Member

State harmonisation established by the early ECJ rulings and enhanced by the Lisbon Treaty.

The European Community has become a major player in the global market and the global

response to terror. Policing and judicial cooperation were hoped to be enhanced between

Member States as result of several Framework Decisions passed between 2000 and 2009.156

These are normally seen through the lens of soft law under a “second pillar” system to EU

authority, to encourage effective policy making through legislative deliberations and joint

decision making with national legislature.157 The method of joint decision-making can be

illustrated in how the Belgian Constitutional Tribunal asked the CJEU for a preliminary

ruling on the ability to implement the framework decisions that would simplify extradition of

nationals, post 9/11.158 After asking for a preliminary ruling on the validity of the Belgian

national implementation, the Tribunal demonstrated they respected the recommendations

made by using the ECJ decision to amend the original policy.159 The German Constitutional

Recovery of sums paid but not due - Treatment of a national charge incompatible with Community law. Joined cases C-10/97 to C-22/97 at 21 155 Dougan, Michael. "When worlds collide! Competing visions of the relationship between direct effect and supremacy." 2007 Common market law review 44:4 p. 932. 156 European Union: Council of the European Union, Council Framework Decision 2002/584 on the European Arrest Warrant and the Surrender Procedures between Member States, 13 June 2002 is one of many framework decisions in response to the “War on Terror”. 157 European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht , 7 February 1992, Official Journal of the European Communities C 325/5 158 Cour d’Arbitage Case No. 124/2005 159 Cloots, Elke. ‘Germs of Pluralist Judicial Adjudication: Advocate Voor de Wereld and other references from the Belgian Constitutional Court’ 2010 CMLRev 47:645,p. 652


Court declared the European Arrest Warrant Act, established to bring the EU framework

decisions into effect in Germany void, because the legislature did not exercise the “full scope

of afforded to national implementation.”160 Because the Framework Decisions are not

directives, they do not require the same direct effect supremacy a EU Directive would

require. However, both the Belgium and German courts recognition of the need to apply

framework decisions in national law, indicate a willingness to except framework decisions as

binding, as long as they appropriately applied within the national system. Recent follow up

legislation for the European Arrest Warrant indicate a willingness to create mechanisms at

the EU level for cross-border information sharing, and periodic review for unexecuted

warrants.161 Cross–border information sharing will be important to creating a surrogacy

mechanism that would properly address fears associated with trafficking and exploitation.

This may seem like a watered down the way in which the EU can ‘directly effect’ the

national systems with a Constitutional Courts, but it is clear that national courts respect the

ECJ and desire to create compliance between both national and EU systems.

Recommendations and joint decisions under the third pillar in EU Law are not supposed to be

binding but the referral to the ECJ to evaluate the national implementation should be seen to

indicate a willingness to be bound absent a need to be bound.162

The ability for the European Union to regulate all levels of surrogacy would require a number

of factors for evaluation. Most of the areas that would pertain to a cohesive surrogacy policy

fall under the realm of shared competency between Member States and the EU. Under

Article 4 of TFEU, the EU has shared competence with Member States for social policy,

160 Press release no. 64/2005 of 18 July 2005 on the judgment of 18 July 2005 – 2 BvR 2236/04 in English available < http://www.bverfg.de/en/press/bvg05-064en.html> accessed 17 October 2014 161 European Parliament resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL) 15-18 162 Elspeth Guild, “The Constitutional Consequences of Lawmaking in the Third Pillar of the European Union’ in Paul Craig & Carol Harlow (eds), Law Making In The European Union, Kluwer Law International 1999 p.74-75


territorial cohesion, consumer protection, freedom, security, safety concerns in public

health.163 Under Article 5 the Union may take initiative to ensure coordination of social

policies.164 As surrogacy policy varies amongst member states and is very contentious, the

ECJ is unlikely to weigh in or attempt to create an over all EU Community policy towards

surrogacy. However, the citizenship component of the cross-border surrogacy argument

meets both the unjustified restriction of a fundamental right, and an international/internal

market component area where the ECJ has significant competency and supremacy. The case

studies section of this paper will also illustrate a common judicial understanding of

citizenship rights in surrogacy decisions. Under Article 67 TFEU the Union commits to

mutual recognition between judicial and extra judicial matters in civil law.165 Member States

and the European Court of Human Rights have come to a common conclusion on the entry of

children born to EU citizens using surrogacy in a third country.166 The European Court of

Human Rights has struck down Member State policy that ignores the citizenship obligation.

Under the Principle of Proportionality, the Court of Justice will evaluate the policy of a

Member State only when it ‘unjustifiably restricts and important legally recognised right’ and

considers the Court to have overall competence to do so.167 De Burca also suggests that if the

right is an individual right rather than a collective right, the ECJ is more likely to adjudicate.

Citizenship for a surrogate child born in a third country to a EU citizen is an individual right

with a consistent National and ECtHR judicial understanding. In the United Kingdom, critics

often reproach EU judicial intervention as a violation of Parliamentary sovereignty.168

However, if the EU Principle of Proportionality was applied to the citizenship right in cross-

163 Supra n.142 at 4(2) 164 Supra n.142 at 5(3) 165 Supra n.142 at 67(4) 166 Case C-319/97 Kortas [1999] ECR-I-3142 167 De Búrca, Gráinne. "The principle of proportionality and its application in EC law." 1993 Yearbook of European Law Vol 13:1 p.111-112. 168 Caporaso, James A. "Changes in the Westphalian order: territory, public authority, and sovereignty." International Studies Review (2000): 1-28.


border surrogacy, it would not be violating any function than is already possible in existing

UK law. Rather than challenge member state policy, the EU scope would apply only to the

citizenship right and more importantly, a right already established in UK case law.169

.

Rather than evaluating a Member State policy under the principle of proportionality, the EU

can use existing purview to create a common policy with regards to external borders and third

party nationals moving through out Europe.170 Under Article 77, the Union can take action to

create special provision for identity cards, residence permits and other documents after

consulting with Parliament as a special legislative procedure.171 The EU also has the ability to

make agreements with ‘third countries’ to determine the provenance of documentation, and

the definition of entry and residence for third country nationals for the purpose of family

reunification.172 These would be key factors in creating a citizenship mechanism for surrogate

children of EU citizens.

3.2 EU Directives and Reproductive Rights

How does the European Union harmonise contentious issues? European Union directives

have a harmonizing effect because they set the tone for member states to accept that a legal

norm has been established. Success of Member State implementation for issues steeped in

contention such as abortion may not occur right away, but the right should be able to be

challenged successfully on the individual level as decided in Costa. The passed Directive

2000/78/EC OJ L303 16, deals with discrimination only based on employment, occupation,

and vocational training. It does not extend into other areas. On July 2, 2008, the European

Commission proposed an anti-discrimination directive that would extend beyond all of social

169 See Case Studies Section of this paper. 170 Supra n. 142 at 77(a-c) 171 Spura n. 142 at77(3) 172 Supra n.142 at 79(2a,b,d and 3)


protection, social advantages and access to goods and services.173 While the Equality

Directive is stalled and potentially not able to be passed because it extends beyond the

employment scope into health care access to goods, this could have profound implications for

access to IVF treatment, and the treatment of children born of surrogacy in third country

destinations. Article 16 of the Directive demands that any laws, regulations and

administrative provisions (emphasis added) contrary to the principle of equal treatment be

abolished. This would also remove barriers for LGBT families where IVF is possible and

remove discriminatory evaluation of birth origin for citizenship of surrogate children. The

inclusion of LGBT rights remains a contentious issue for many Member States. The Social

Security Regulation Directive deals with the access and reimbursement for cross-border

health care currently codified by the Patient Mobility Directive. Directive 98 deals with the

harmonizing of national policy on in vitro diagnostic medical devices including assisted

reproductive technologies. It deals with making their creation standardised, not on prohibiting

their use.174 The Tissues and Cells directive explicitly states the Directive can not change “the

Member States defining the legal term ‘person’ or individual’ giving Member States the

ability to mold national policy to maintain cultural standards.175

While examining the report of the regime of surrogacy in the EU, the break down of Member

State legal status for surrogacy highlights the curve of wealthy states with restrictive laws

making up much of the case law pushing for surrogacy, while the poorest of states are often

involved in the surrogacy services.176 This lack of services in the wealthier states is driving

173 Brussels, 2.7.2008 COM(2008) 426 final 2008/0140 (CNS) 174 Patient Mobility Directive (Directive 2011/24/EU Directive 98/79/EC OJ L331/1(7.12.1998) 175 Directive 2004/23/EC, OJ EU L 102/48 (07.04.2004) & Directive 2006/17/EC, OJ L 28/40 (09/02/2006) & Directive 2006/86/EC, OJ L 294/32 (25.10.2006) make up the Tissues and Cells Directives. 176 Brunet, Laurence, et al, Directorate General for Internal Policies “A Comparative Study on the Regime of Surrogacy in EU Member State” Policy Department C: Citizens' Rights and Constitutional Affairs, p-15-16 available


intended parents to the poorer states where donors are potentially forced to use reproduction a

form of employment.177 An overwhelmingly negative report on surrogacy for EU parliament

calls for regulation seeing the cross-border element as a way to avoid domestic law reform.178

The report highlights the varied surrogacy regimes, multi-million dollar global economy in

non-EU destination States, and the increased movement of EU citizens to seek these services.

If EU law were to engage with a Citizenship Directive for cross border surrogacy, there

would be no danger of infringing on member state legislation on surrogacy. To the contrary,

if a EU mechanism to aid citizenship conundrums in cross-border surrogacy arrangements

were to develop, member states could effectively evaluate the social dimensions of the

services with the benefit of hard data to reform or enhance internal law in a slower process.

Member states could also be part of the solution to unregulated surrogacy markets by driving

EU citizens to “best practices States” as a form of social conscious branding drawn from the

information a supranational collected.

3.3 Citizenship

What is EU Citizenship and can the European Union create a mechanism to mitigate the

creation of stateless children when EU citizens engage in international surrogacy?

<http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf> 177 L Brunet a.o., A comparative Study on the Regime of Surrogacy in EU Member States, 2013 PE 474.403 available online at <htto://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf> 178 Supra 122 at p. 36 ‘What is seen as law evasion in certain national contexts which leads people to cross borders, may be a deliberate safety valve to national policy-makers and legislators which reduces pressure for domestic law reforms. This makes the need for regulation on EU level imperative to safeguard health and safety.’


The European Parliament issued a strategy for a 'renewed social agenda' in, EU Law on, 6

May 2009179 emphasizing the role of the EU in setting external social agenda both as the

body to promote and influence the international agenda, and to assume a more proactive role

in promoting social and environmental standards internationally.180 Immigration is a growing

responsibility of EU law. Every citizen of a EU member State is automatically a EU citizen

though this does not replace national citizenship.181 As a EU citizen, individuals are affording

the rights of free movement, complaint to European Ombudsman, diplomatic and consular

protection and the ability to vote in EU elections.182 Supplemental to national citizenship, the

revocation of national citizenship does not immediately revoke EU citizenship as will be

explored in this section.

Citizenship policy in States where commercial surrogacy is commissioned has an enormous

bearing on the free movement of children. In Re L 2010, U.K. Justice Hedley highlighted the

problem of international surrogacy and the interaction with citizenship and immigration. The

child in this case gained entry to the United Kingdom through the temporary issuance of a

U.S. Passport.183 The immigration of the minor child was not complete, but the issuance of a

parental order decided in this case will likely remove barriers to appropriate immigration. The

temporary citizenship offered by the United States allowed the child to travel with intended

parents and start the process of bonding. The United States position on issuing the passport to

the child recognised the positive obligations of the State towards the child's right to

citizenship defined in international and domestic law. Hedley argued that he felt it was time

to relax the provision requiring commercial surrogacy cases engagement with the High Court,

179 (2010/C 212 E/05) 180 (2010/C 212 E/05) at 52 -55 181 Treaty on the Function of the European Union. Maastricht Treaty 182 European Commission website: http://ec.europa.eu/justice/citizen/ 183 Re L (a minor child) [2010] EWHC 3146 (Fam) at 8.


as it is clear that the welfare of the child is paramount and not simply a factor as established

by Re X & Y.184

The United States offers a harmonised method of citizenship for surrogate children within its

borders, while individual states have free will to determine their own policy towards

surrogacy services. Commercial surrogacy may be illegal to obtain in many U.S. States,

children born from the services in a permissive state remain U.S. Citizens when they move to

a State where the procedure is prohibited.185 This clear separation between access to services

and the fundamental right of citizenship provides a model for the European Union. While the

notion of a federalist EU is unpalatable in many member states, EU citizenship is already

conferred and endowed with political rights, as well as the right to legal redress.186 Can the

EU ever become a pan-Europe national identity as envisioned?187 Opponents like Dimitris

Chryssochoou argues that the suis generis between the pragmatic and normative approach to

a unified policy under EU law mean that there is no basis for "European sovereignty to

emerge."188Increasingly, Members States are realizing the importance of cooperation and

citizenship at the EU level when attempting to combat returning jihadi fighters in the Syrian

conflict.189

184 Ibid at 11 185 Afroyim v. Rusk, 387 U.S. 253 (1967) The U.S. Supreme Court decided a person cannot lose U.S. nationality unless he or she voluntarily relinquishes that status. 186 See generally Sitter, Nick. "The politics of opposition and European integration in Scandinavia: Is Euro-skepticism a government opposition dynamic?." 2001 West European Politics 24(4) p. 22-39. 187 Report on ‘A People’s Europe’ following the Fontaineblue summit of the European Council, COM(84)446 final 188 Chryssochoou, Dimitris N. Theorizing European Integration 2009 Routledge, New York p. 91 189 Neilsen, Nikolaj “Europe at Risk of “Huge Number” of returning Jihadist Fighters” Euonbserver, Brussels, 10 Oct 2014 <https://euobserver.com/justice/125996>


Areas where cross-border rights play a role, along with adequate care as well as community

standardization are the triggers for TFEU.190 Free movement of people and capital is a core

right as established in 1968. Border restrictions between member States were abolished for

workers under Directive 68/360/EEC. This treaty also contains a provision that enables the

worker to provide proof of relationship issued by a competent authority to allow family

members to move as well.191 Under Article 4 in the Directive, in case of a family member

who is a resident of a non-member State, the Council directs member States to issue the same

residency document, “that is the same as the worker on whom the individual is dependent.”192

While this Directive applies to the free movement of workers, there is a clear intention from

the EU to apply a harmonized approach to citizenship and movement for EU citizens. Here

the connection of the individual to their citizenship rights under European Law confers

special status that overrides domestic border law.

The mantra of European Citizenship has been repeated through out case law in the CJEU. In

the 2001 Grelczyk case, the ECJ stated 'Union citizenship is destined to be the fundamental

status of nationals of the Member States.'193 Article 20 of TFEU specifically states that EU

citizenship is additional to national citizenship. The importance of EU citizenship was also

emphasised in Rottmann v Freistadt Bayern. In this case, an Austria national lost his

citizenship when he became a naturalized citizen of Germany. After naturalized in Germany,

190 See Articles 33, 34, 46, 47 of Convention for the Protection of Human Rights and Fundamental Freedoms CETS No.:005, entered into force, 3 September 1953 191 European Union, Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 29 April 2004, 2004/38/EC 192 Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families Art. 4(4) 193 Case C-184-99 Grelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la Neuve [2001]ECRI-6193 (31)


it was discovered that Rottmann lied about pending criminal charges in Austria. Germany

moved to revoke his citizenship, which would render him stateless.194 The ECJ turned over

this move. Commentators on the ruling also indicate that the ECJ’s approach towards the

revocation of citizenship may also apply to the refusals to grant citizenship.195 Where

member states have refused citizenship to children born of surrogacy the ECtHR has over

turned the refusal.196

The right of a child to EU citizenship, residence and free movement is established in ECJ

case law in Zhu and Chen v. Secretary of State for the Home Department.197 The case

involved a Chinese national who had given birth to a daughter in Northern Ireland. The child

obtained Irish citizenship through birth, as UK citizenship under the British Nationality Act

1981 did not automatically grant nationality to a child born in the territory.198 The UK

refused a residency permit to the mother under the grounds that the child did not possess

sufficient resources to care for itself as required and the mother's means could not be used as

proof of means. The UK government also rejected that the child, because of her age, could

not exercise any legal rights to EU citizenship and these rights did not apply to her mother, a

Chinese national. While the ECJ upheld the notion that EU rights did not extend to the

mother based on dependency, they highlighted that failure to grant the leave to remain would

effectively "deprive the child's right to residence without any useful effect.'199 EU Citizenship

can be seen to be an effective right regardless of ability to work or be a worker as a condition

194 Case C-135/08 Rottmann v Freistadt Bayern, 2 March 2010 195 See commentary from Jo Shaw and others available at <http://eudo-citizenship.eu/commentaries/citizenship-forum/citizenship-forum-cat/254-has-the-european-court-of-justice-challenged-member-state-sovereignty-in-nationality-law?showall=&limitstart=> accessed 1 October 2014 196 Mennesson and Others v France no. 65192/11 197 Case C-200/02 Zhu and Chen v. Secretary of State for the Home Department [2004]ECR I-9925 198 British Nationality Act 1981, 1981 Chapter 61, 30 October 1981(1) A-B 199 Case C-200/02 Zhu and Chen v. Secretary for the Home Department [45]


of that right. This case also indicates that ECJ may see EU citizenship rights as a special

status regardless of member state citizenship policy. This could potentially mean that EU

citizenship of the parents and their right to establish a family with a surrogate child, could

trump a member state preference for a genetic link to the surrogate. The result would be a

change to make parental intention a test for citizenship of the child rather than a genetic link,

as required by most member state policy in surrogacy matters. This could be a solution for

cases where clinical error resulted in a child that was not biologically related to the

commissioning parents, but where the parents still wished to keep the child. More

importantly, data regarding these incidents would be externally tracked allowing significant

international pressure on clinical practice where the governments of commercial surrogacy

states may be reluctant to examine.200

Can consensus towards citizenship be explained in contentious States? The United Kingdom

political institutions indicate a consistent resentment to the European Union and the ECJ in

general.201 As highlighted previously, surrogacy policy in the United Kingdom developed

under extreme moral panic in response to new reproductive technology. The panic had

abated some by the time the policy was re-evaluated under Human Fertilisation and

Embryology Act 2008, however the Surrogacy Arrangements Act of 1985 was only enhanced

by the wording of the HFA of 1990. Would the court ever deny a child born of surrogacy to

enter the country of the intended parents? Where commercial aspects have been engaged, the

court ruled that the child should be allowed entry. Re X& Y (Foreign Surrogacy) UK ruled

that the best interest of the child must be engaged regardless of how uncomfortable the court

200 Vorzimer,Andrew ‘More Surrogacy Horror Stories out of India’ March 23, 2013, The Spin Doctor online < http://www.eggdonor.com/blog/2013/03/22/surrogacy-horror-stories-india/> accessed 13 October 2014 201Telegraph View, “Another EU Threat to National Sovereignty” 14 April 2014 ,The Telegraph online accessed 13 October 2014 <http://www.telegraph.co.uk/news/worldnews/europe/eu/10765509/Another-EU-threat-to-national-sovereignty.html>


might be with the compensation aspect of cross-border surrogacy.202 This same judgment

was used to evaluate another case in 2011 between an English couple and two women in

India. Sir Nicholas Wall reiterated the statement from Re X&Y in his judgment concluding

that it is unlikely any court would not grant a parental order based on the exchange of

compensation because the welfare of the child was significantly more important than the

commercial aspect that may have been engaged.203 Political institutions may react loudly to

ECJ intervention in surrogacy, but the judiciary has voiced a common opinion that reform is

needed and citizenship of children born through surrogacy is firmly established.

Perhaps most importantly, there is a consensus in case law with regard to entry of children

born through international surrogacy regardless, of the commercial aspect or violation of

national policy. After lengthy processes, Member State domestic courts have continuously

approved parental orders and permitted entry of surrogate children. Member state surrogacy

policy cannot adequately replace the welfare of the child principle in judicial decisions. On

this basis, the European Union could create an entry mechanism that could shorten the entry

delay by allowing the registering of agreements, intent, and external authority issued

documents vetting them, in advance to certify for the member state the questions pertaining

to child entry. This would permit the member states to then evaluate parentage and welfare

through their own domestic courts while the child's fundamental rights are realised. Perhaps

the political will to reform or even create surrogacy law in Member States lacking framework

will be enhanced by allowing the outsourcing of the citizenship argument to the supranational

body. After all, it is very likely that States would support revocation of EU citizenship in

Jihadi cases, which isn’t currently possible through the supplemental application of EU

citizenship.

202 Re X&Y (Foreign Surrogacy) [2008] EWHC 3030(Fam) para 24 203 Re X&Y (Children) [2011] EWHC 3147 (Fam)


Citizenship and family are the core foundations common in all International Treaties to

which, European Union as an international legal body must adhere. Children have special

protection and demands for citizenship. Signatories to International Treaties have positive

obligations to protect children and family, and to provide citizenship and birth registration.

Increasingly, legal scholars are calling for assured recognition of citizenship for surrogate

children.204 As International law is frequently quoted by the ECJ and most EU member states

are signatories to the core treaties the have positive obligations to engage with the citizenship

problem in cross-border surrogacy. Destinations States for surrogacy are also signatories.

This is where the EU could have a diplomatic influence. Where international law (in the

Kadi205 case, UN Law) does not adhere to EU law, the ECJ has expressly said it should be set

aside particularly if violates human rights.206 Here Advocate General Maduro emphasized a

commitment for EU law to uphold fundamental human rights of the EU community. Absent

any International Framework on Surrogacy, the EU could play an important role in holding

up the fundamental right of citizenship for children born in cross-border surrogacy.

204Ikemoto, Lisa, “The Role of International Law for Surrogacy Must Be Expanded” New York Times, online, 22 September 2014, available at< http://www.nytimes.com/roomfordebate/2014/09/22/hiring-a-woman-for-her-womb/the-role-of-international-law-for-surrogacy-must-be-expanded> 205 Case T-315/01 Yssin Abdullah Kadi v Council of European Union and Commission of the European Communities 206 Op. Advoc. Gen., 3 C.M.L.R. 41 (2008), at 31


Chapter 4: Case Studies in Law: EU & ECtHR vs. National

The European Parliament issued a strategy for a 'renewed social agenda' in EU Law on 6 May

2009207 emphasized the role of the EU in setting external social agenda both as the body to

promote and influence the international agenda and to assume a more proactive role in

promoting social and environmental standards internationally.208 As highlighted in 3.1 of this

paper, the Treaty on the Functioning of the European Union (TFEU) is triggered in cross

border rights with regards to adequate care and issues of standardization.209 EU accession to

the ECHR makes the Luxembourg decisions very important moving forward.210

Tests for surrogacy law in European Union Law are very limited. C.D. & Nyr decision

through the Court of Justice of the European Union (CJEU) engaged with surrogacy through

employment law and held that EU law does not hold provisions for recipient mothers to

adoptive or maternal leave.211 In its decision the court did fully recognise that surrogacy has

become a wide spread practice since the inception of the directive under which the case was

brought forth.212 Directive 92/85 was written from a singular understanding of mother that

did not include intended motherhood. The argument was the whether the inclusion of “breast

feeding mothers” in the wording of the directive applied to breastfeeding intended mothers

despite the monist understanding of biological motherhood under which the directive was

written. The Court recognised that the protections afforded by the directive applied to

mothers who bottle fed their children at that breastfeeding alone was not a requirement for

protection. Nonetheless, the intent of the directive should be extended to both surrogate

207 Official Journal of the European Union, CE 212, 05 August 2010 (2010/C 212 E/05) 208 Supra 205 at 52 -55 209 Convention for the Protection of Human Rights and Fundamental Freedoms CETS No.:005, entered into force, 3 September 1953 210 Treaty of Lisbon which was entered into force on 1 December 2009 211 C.D. v S.T. C-167/12 Judgment [GC] of 18 March 2014 212 C.D. v S.T. C-167/12 Judgment [GC] of 18 March 2014 at 39


mothers in terms of their right to protections during pregnancy as well as to intended mothers

who are caring for their children born through surrogacy whether they bottle fed or great fed

the child.213 What is important in the C.D & Nyr case is that the court acknowledges the

prevalence of surrogacy as a reproductive choice for EU citizens. The case also recognises

the importance of the bond of intended mother, regardless of genetic connection, and the

protection of the surrogate mother in employment matters.

Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG examined through the lens

of employment law engaged with the dismissal of a woman receiving IVF treatment. The

question for the court was whether the dismissal of Mayr fell under the protection of

Directive 92/85/EEC preventing the dismissal of pregnant workers. Under German law, a

pregnant woman cannot be dismissed during pregnancy or for 4 months after giving birth

unless the employer is not aware of the pregnancy. German law permits this law to extended

with notification of pregnancy or birth with in 5 days after dismissal in cases where the

employer may not be aware.214 Mayr was not pregnant at the time of the dismissal but

undergoing IVF treatment that included the implantation of the embryo into her uterus 3 days

after the dismissal. The Grand Chamber ruled that protection for pregnancy workers did not

extend to individuals in the advances states of in vitro fertilization in this case, because the

ova had not yet been established in Mayr's uterus at the time of dismissal.215 The court did

emphasis that while the pregnancy protections might not be able to extend to a worker in

advance IVF, dismissal because of receiving such treatment, as was evident in Mayr case, is

contrary to Directive 76/207.216

213 C.D. v S.T. C-167/12 Judgment [GC] of 18 March 2014 at 90 214 Sabine Mayr, C-506/06, Judgment [GC] of 26 February 2008 at 13 215 Sabine Mayr, C-506/06, Judgment [GC] of 26 February 2008 53 216 Sabine Mayr, C-506/06, Judgment [GC] of 26 February 2008 at 54


4.2 European Court of Human Rights and EU Law

The ECtHR in Strassbourg has held the most case laws regarding reproduction with some

specific cases regarding surrogacy. Under Brüggeman and Scheuten courts supported Article

8 of the ECHR with respects the right to become a genetic parent217, as a “pregnancy and the

interruption of pregnancy are part of private life, and also in certain circumstances family

life…and the right to establish relationships with other human beings”.218 This is important

to establish the right to be a parent as a fundamental right. S.H. v Austria supports the right

for a couple to “conceive a child and seek medically assisted procreation for that purpose.”219

Academic Nelleke Koffman points out that Article 8 ECHR doesn’t cover the right to

abortion nor procreation, but violations of these rights are generally addressed under this

article and even then, the ECtHR consistently gives Member States a wide margin of

appreciation.220 Without a wide Member State consensus in surrogacy law, the court

continues to allow a wide margin of appreciation for the state to decide reproductive issues as

seen with abortion in the A,B,C v Ireland Case.221 While Article 8 may not confirm the right

explicitly, the ECtHR stated In Costa and Parvan v. Italy that the right to be a parent or not

be a parent is enshrined in case law.222

217 ECtHR (dec.) 19 May 1976, Brüggeman and Schceuten v Germany, no. 6959/75 218 Inter alia ECtHR (dec.) 19 May 1976, Brüggeman and Schceuten v Germany, no. 6959/75 at 115(5) and Scheuten v Germany, no. 6959/75; ECtHR (dec.) 5 September 2002, Boso v Italy, no. 50490/99; ECtHR [GC] 8 July 2004 219 (ECtHR 9dec.) 15 November 2007, S.H. and others v Austria, no. 57813/00 220 Koffeman, N., “Legal Responses to Cross-Broder Movemner in Reproductive Matters within the European Union” Paper for Workshop no. 7. Sexual and reproductive rights: liberty, dignity and equality of the IXth World Congress of the IACL CONSTITUTIONAL CHALLENGES: GLOBAL AND LOCAL , Oslo, Norway, 16-20 June 2014 https://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/wccl-cmdc/wccl/papers/ws7/w7-koffeman.pdf accessed 30 July 2014 221 ECtHR [GC] 16 December 2010, A,B and C v Ireland, no 25579/05 222 ECtHR 28 August 2012. Costa en Pavan v Italy, no.54270/10 at 48


Along with total bans on surrogacy, states have blocked medical personnel from following

patient care outside their borders specific to ART but not other medical procedures.223 France

has blocked issuing documents for children born through surrogacy outside the country,

leaving the child without the ability to exercise free movement. Though not final, the ECtHR

ruled unanimously that the discriminatory practice of failing to issue citizenship documents

because of surrogacy is unacceptable. In Mennesson v. France224 and Labasse v France,225

the ECtHR ruled on 26 June 2014, that the failure to establish a legal relationship for children

born of surrogacy in the United States to French citizens is a violation of Article 8 of the

ECHR, right to private life for the children involved. While the judgment is in French, the

ECtHR press release affirms that denial of a legal relationship for the child to the intended

parent based on the use of surrogacy was beyond the margin of appreciation afford Member

States.226 French policy discriminated against the children as well as the father's de facto

enjoyment of parental status based on the origins of birth. The European Court of Human

Rights also argued this policy is firmly against established case law with in France's own

legal system.227 Where punishment for helping a patient is demanded by national law228, AG

Van Gerven issued an opinion that suggests such prosecutions are hard to permit under EU

223 This is particularly the case in places where surrogacy is completely against the law like France, and Italy. 224 Mennesson and Others v France no. 65192/11 225 Labassee v France, no. 65941/11 communicated 12 February 2013 226 Press Release issued by Court Registrar ECHR 185 (2014) 26.06.2014 available <http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4804617-5854908#{"itemid":["003-4804617-5854908"]}> accessed 1 October 2014 227 Ibid “Not only had the tie between the twins and their biological father not been acknowledged when the request was made for the birth certificates to be entered in the register; in addition, the recognition of that tie by means of a declaration of paternity or adoption, or on the basis of de facto enjoyment of status, would fall foul of the prohibition established by the case-law of the Court of Cassation in that regard. In thus preventing the recognition and establishment of the children’s legal relationship with their biological father, the French State had overstepped the permissible margin of appreciation” 228 W Van Hoof and G Pennings, ‘Extraterritoriality for cross-border-reproductive care; should states act against citizens traveling abroad for illegal infertility treatment?’ 2011 Reproductive BioMedicine Online p. 23


free movement law.229 States have been known to actively prevent cases from being

evaluated under EU Free Movement and Patient Mobility Directives230 by denying travel of

citizens in cases where the State suspects services against public policy may be engaged.

After the Irish denying a 14 year old multiple rape victim the ability to travel to receive an

abortion for 9 months effectively denying her the right to an abortion outside the country.

Because movement never occurred, EU Law could not be invoked. Following the case, the

Irish Constitution was changed to include that it does not limit freedom of travel between

states in an effort to protect life.

The issue of surrogate child citizenship and margin of appreciation in favor of Member States

could have been addressed but was avoided through the recent decision before the Strasbourg

court. In the case D. And Others v. Belgium, the couple traveled to Ukraine for surrogacy and

their names are listed as the parents for the Ukrainian birth certificate. Because there was no

ability for the intended mother to show proof of pregnancy, Belgium refused to issue the

child documents and failed to let the child enter the country, forcing the parents to hire a

nurse and leave the child behind. The process left the family separated from each until such

time they could meet the Belgium requirements other and they argue that their article 3 and

article 8 rights of the Convention for the Protection of Human Rights and Fundamental

Freedoms, were violated because of their separation. The communicated case highlighted

previous civil practice where the paperwork is issued in favor of the intended parent quoting,

Trib. Antwerp, December 19, 2008, Liège Court of Appeal, September 6, 2010, Journal of

the Courts, 2010, p. 634, Trib. Brussels, 15 February 2011.”231 As legal parents in the eyes of

Ukraine, the couple is responsible for the well being of the child, but the Belgium state

229 Cf. Grogan, C-159/90, Opinion of Advocate General Van Gerven of 11 June 1991 [1991] ECR-I-4703 230 Patient Mobility Directive (Directive 2011/24/EU) 231 Request n o 29176/13, D. and R. against Belgium, introduced April 30, 2013


effectively removed their ability to uphold their obligations effectively. The harmed caused to

the family, who now reside together in Belgium, was used as burden of proof for this case. A

focus on the legal documentation ignores the rights of the existing child and the rights of the

child should have supremacy. Currently, the intended mother is no longer on the birth

certificate. The ECtHR avoided a decision with regards to failure of the Belgium State to

issue travel documents because at the time the case was heard, the child had received the

temporary documents and the court held that the issue was resolved. The ECtHR could have

emphasized Belgian obligations under ECtHR with regard to administrative procedure and

the obligations under the Convention on the Rights of the Child. Without watering down

member state sovereignty, pointing to the imperative to prevent national policy from creating

stateless children under Article 7 of the CRC. Ukraine and Belgium have both ratified CRC

and have clear obligations to change entry policy for surrogate children of nationals and the

issuing of documentation for surrogate children at birth.232 Belgium has registered

reservations in response to CRC Article 2 specifically against the obligation to prevent

discrimination on the grounds of nationality. In the United Kingdom, citizenship decisions

have been made on the internal member state level.

Access to IVF in Member States will still be given a wide margin of appreciation. However,

in Costa en Pavan case two clashing interests between IVF and abortion were evaluated. The

couple was denied access to IVF and Pre-implantation Genetic Diagnose (PID) because they

were not infertile. As carriers for genetically transmitted disease, they had already produced

one child with the condition. The couple could avoid passing on the condition to other

children through IVF treatment and PID, which they were not allowed in Italy. Italian law

allowed them to terminate a pregnancy if the foetus showed signs of the disorder they wished

232 Ukraine signed the CRC 21 February 1990 and ratified the document 28 August 1991. Belgium signed the CRC 26 January 1990 and ratified the convention 2 May 1990


to test for.233 The court ruled that this created an undue burden requiring the couple to use

natural methods of pregnancy, only to require abortion when the pregnancy proved to involve

the genetic disorder. The court found this to be a disproportionate interference in the

applicants right to private and family life. The Strasbourg court also suggested that the

proportionality test for a blanket ban on PID should be reevaluated in favor of a highly

regulated approach to procedure.234

EU Law is not likely to engage with any service provision for IVF or other infertility

treatment. However, where such services are engaged, the EU principles of non-

discrimination should apply. Gas & Dubois is a case where the Strasbourg court has ruled

that same-sex couples are not the same as infertile heterosexual couples.235 This could

potentially affect the quality of family argument however; X and Others V Austria inter alia

decided that the rights and entitlements with in the convention must be non-discriminatory in

application.236 Pending EU legislation is also attempting to engage with equality in law for

LGBT EU community members that may change the possibility for IVF treatment for LGBT

families under EU law in the future.237 Access to fertility treatment for heterosexual couples

is by no way guaranteed in the face of restrictive member state law. In SH and Others, the

lower court found that there was a violation of Article 8 with respect to the denial of infertile

couples and access to IVF treatment wholly restricted in Austria. This ruling was later over

turned in the Grand Chamber.238 The Grand Chamber heavily quoted the margin of

appreciation for States in their ability to provide Assisted Reproductive Technologies as there

233 ECtHR 28 August 2012. Costa en Pavan v Italy, no.54270/10 at 58 234 ECtHR 28 August 2012. Costa en Pavan v Italy, no.54270/10 at 63 235 ECtHR 15 March 2012, Gas and Dubois v France, no. 25951/07 236 ECtHR [GC] 19 February 2013, X and others v Austria, no. 19010/07 237 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, Brussels, 2.7.2008, COM(2008) 426 final 238 ECtHR 1 April 2010, S H and Others v Austria, no.57813/00


is “no sufficiently established European consensus as to whether ova donation for in vitro

fertilization should be allowed”.239

The Akerberg (tax) Judgment has led to the acceptance that the Charter of Fundamental

Rights only comes into play where the scope of EU Law is involved and then becomes the

minimum standard.240 “The Court allows the applicability of the national fundamental rights

standard “in a situation where action of the Member States is not entire determined by

European Union law”, yet the fact that there is a connection with EU law means that the

Charter level of protection applies as a minimum guarantee. It also means that the national

standard can only apply if it does not compromises the primacy, unity and effectiveness of

European Union law – a question on.”241 This has significant potential for the ability of EU

law to use Charter law to address surrogacy issues. The Charter has much more promise for

reproductive rights than EU Law but where the charter address issues around surrogacy, EU

law should make charter law the minimum according to the Akerberg tax Judgment. EU law

has only specifically engaged surrogacy cases in Sabine Mayr where it defined advanced

stage IVF treatment in law for employment purposes.242

EU Law provides for a wide margin of appreciation for member states to make decisions

regarding reproductive issues, but it can still normalise the free movement and recognition of

legal documents between EU member States removing the barriers for the parent and child to

exercise their free movement rights. EU law can also engage in negotiations with external

regional bodies like the United States to set a minimum standard of recognitions for infertile

couples abroad or at home making this travel unnecessary. Recalling the ECJ decision in Zhu

239 ECtHR 1 April 2010, S H and Others v Austria, no.57813/00 at 106 240 Akerberg,I C-610/11 Judgment 26, [GC] February 2013 241 Commentary from Vicky Kosta, Leiden University 242 Sabine Mayr, C-506/06, Judgment [GC] of 26 February 2008


& Chen in the citizenship chapter, in light of the ECtHR ruling against denial of French

citizenship to surrogate children, the ECJ should have enough case law from Member States

and European Court of Human Rights to suggest a citizenship mechanism for surrogate

children in the absence of an International Surrogacy Treaty.


Chapter 5: A Model to move Forward?

There are a number of potential models for cross-border surrogacy both at the national and

international level. Phillip Anderson suggests that the United Kingdom should use the Israeli

model for legal reform for surrogacy. Where in Israel only full surrogacy is allowed,

contracts are enforceable and commercial surrogacy is permitted.243 He suggests replacing

the problematic parental orders that would require creation of a mechanism to allocate

parental rights based on the enforceable agreement.244 This method within a Member State is

certainly better suited to coping with parental intent in surrogacy and would realise enhanced

protections for all members of the surrogacy triad.

Erica Davis calls for international regulation on surrogacy, believing that if regulation does

not occur soon, it will lose the potential to be effective since it is clear that case law allowing

commercial surrogacy is mounting. 245 Barring any movement to develop a cohesive

approach to surrogacy in Member States, the European Union can use its current capacity to

address a citizenship through existing models.

In the United States, citizenship is conferred through birth to U.S. Nationals abroad or birth

with in the territory of the United States of America. The individual states within the U.S.,

like in the EU, have wide and varied public policy towards the availability of surrogacy.246

243 Full surrogacy here refers to complete IVF where the surrogate is in no way related to the feotus. 244 Anderson, Phillip K. ‘Evaluation of Surrogacy Law and its Potential Development in the UK; Is There a Clear Way Forward?’2 2010 King's Student L. Rev. 2:37 245 Davis, Erica ‘The Rise of Gestational Surrogacy and the Pressing Need for International Regulation’, 2012 Minn. J. Int'l L. 21:120 246 See excellent visual map on surrogacy policy in the United States published by August 4, 2012 online , Milwaukee Wisconsin Journal Sentinel available at < http://www.jsonline.com/news/health/163772546.html> accessed 15 October 2014


The citizenship mechanism does not change regardless of the origin of birth and the

surrogacy policy of the state of residence for intended parents.

The Hague Convention on Adoption supplies a broad framework, which can be used as a

guideline for States to develop their own national policy. As access to parental information is

a concern in surrogacy that can involve three different donors, the norm for identifying

information with in the Hague Convention on the Protection of Children and the Cooperation

in Respect of Intercountry Adoption (The Hague Convention on Adoption) suggests states

keep records of the information where possible. It does not advise that the information must

be kept or not kept, which allows the States freedom to maintain current domestic approach

to birth information in adoption laws.

When corruption in one international adoption system was uncovered, temporary

moratoriums had been established to attempt to cope with the corruption. The Romanian

Adoption Committee halted adoptions while the domestic courts addressed the large-scale

corruption in the adoption business in Romania. Space was made to address adoptions

already in progress called “pipeline cases” to evaluate the situation and help adoptive families

who were already in the adoption progress emotional and financially.247 What is important to

highlight about the information requirement in The Hague convention is that it permits the

states to maintain their own process for how this is approached and creates a monitoring arm

between States for criminal activity. In the United Kingdom, a passive registry allows

mutually seeking members of the adoption triad to connect when it is clear they all desire

contact. Birth records can automatically be accessed by adult adoptees in France, Germany.

247 Update on Romanian Moratorium on International Adoption (6/1/02) available at http://www.jointcouncil.org/romania-moratorium-extended/accessed 17 September 2014


Denmark, Iceland, Norway, Sweden and the Netherlands.248 Will records be available from

India and Ukraine for adult children born form surrogacy? There is no current framework to

force this process.

The European Convention on the Adoption of Children was revised after the initial 1967

version because case law and international treaty obligations as well as recommendations

were made to insure that they rights of the Child and the legal status of parentage were

adequately protected. This is highlighted in the preamble of the text:

‘Recognizing that some of the provisions of the 1967 European Convention on the Adoption of Children (ETS No. 58) are outdated and contrary to the case-law of the European Court of Human Rights;’ Recognizing that the involvement of children in family proceedings affecting them has been improved by the European Convention of 25 January 1996 on the Exercise of Children’s Rights (ETS No. 160) and by the case law of the European Court of Human Rights;

The reform decision was informed by new case law and to address difficulties caused by the

differences in national laws while enhancing the interests of children who are adopted;

Being convinced of the need for a revised Council of Europe international instrument on adoption of children providing an effective complement in particular to the 1993 Hague Convention;

The importance of this revision was highlighted by the need not to acquire unity amongst

member states or change member state approach but to harmonize international law into the

EU legal cannon.

The European Convention on Adoption, unlike public policy hurtles in the surrogacy process,

specifically allow the adoption of a child by a single person or a same sex couple.249 Article

248 Information regarding adoption access for adult adoptees can be found


17 lays out compensation for the adoption process, but only sets a standard that “no one shall

derive any improper financial gain or other gain from activity relating to the adoption of the

child.”250 Were surrogacy with in the European Union to have the same treaty standard,

individual member states could change maintain their approach towards commercial

surrogacy and test the payment through proportionality on an individual basis. More

importantly, this policy would not put surrogate mothers in the position of being the only

member of a triad unable to be paid for their services contributed increasing the likely pool of

local surrogates.

The Hague Convention insures that inter-country adoptions occur with the best interest of the

child in mind but fully with “respect fort her or her fundamental rights as recognised in

international law”.251 While the CRC maintains that, the child is best to remain in the country

of origin, The Hague convention recognises that a establishing a family abroad is preferable

to life in an institution in the country of origin.252 The European Convention on Adoption

establishes the requirements for central authorities in the state, data collection, and most

importantly, the expectation regulation of service providers. The lack of scrutiny that can be

applied to international surrogacy services allow India to operate with impunity. The

preferred legal structure found in California has priced the services out of reach for many

couples that turn to the less regulated markets. It is clear that some framework is desperately

needed to address cross-border surrogacy.

249 European Convention on Adoption (Revised) Strasbourg, 27.XI.2008, Article 7 250 Ibid, Article 17 251 Hague Conference on Private International Law, Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, 29 May 1993, Article 1(a) 252 See Article 21 of the CRC and Chapter 2 of the Hague Convention.


Conclusion

Individual States are ultimately powerless to stop the multi-billion dollar growth of

international surrogacy. Domestic law cannot combat the human rights abuses possible in the

unregulated international market. All States have an obligation to bestow citizenship on

children born within their borders and to not create barriers for their existing citizens that

would leave a child stranded for months or years before reuniting with intended parents. The

restrictive national legislation on surrogacy continues to make the international market more

attractive to intended parents. By dealing with the citizenship component of surrogacy on an

EU level, there is a further opportunity to collect data and make informed decisions on how

to best reshape National policy and promote international policy to address exploitation of

women and the drive for genetic reproduction. Wealthier states have an obligation to

understand the push factors that drive their citizens to poorer regions to pursue reproduction.

Factors like the availability of surrogates, gender imbalance of parentage law, and payment

for surrogates should be critically evaluated. Policies that deny compensation to the surrogate

while permitting compensation for gamete donors and clinics, is profoundly patriarchal and

perpetuates the anti-female policy where women’s work is valued for altruistic purpose only.

Such policies denying the female the right to chose her method of production as a member of

society. The European Union and Member States fail to adhere to their positive obligations

established by their commitment to the CRC, ICCPR, UDHR, and ICESCR absent a special

mechanism to quickly mitigate citizenship for children born to EU citizens. To create such a

mechanism would be to recognise the mounting case law to support the fundamental right of

citizenship of children without discrimination as to birth origin.


Bibliography

Legislation

International International Covenant on Civil and Political Rights, December 19, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Session, Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, 172 (entered into force Mar. 23, 1976) International Covenant on Economic, Social and Cultural Rights, December 16, 1966, G.A. Resolution 2200 A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, 5 (entered into force January 3, 1976 Universal Declaration of Human Rights, United Nations, G.A. Res. 217 (III), UN GAOR, 3rd Sess., Supp. No. 13, U.N. Doc. A/810 at 71 (1948) Hague Conference on Private International Law, Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, 29 May 1993 Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49 European Union Brussels, 2.7.2008 COM(2008) 426 final 2008/0140 (CNS) Convention for the Protection of Human Rights and Fundamental Freedoms CETS No.:005, entered into force, 3 September 1953 Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families. European Convention on Adoption (Revised) Strasbourg, 27.XI.2008 European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01, Art 5(2) European Union, Treaty Establishing the European Community (Consolidated Version), Rome Treaty, 25 March 1957

European Union, Treaty on European Union (Consolidated Version), Treaty of Amsterdam, 2 October 1997 European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht , 7 February 1992, Official Journal of the European Communities C 325/5 European Parliament resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL) 15-18


European Union: Council of the European Union, Council Framework Decision 2002/584 on the European Arrest Warrant and the Surrender Procedures between Member States, 13 June 2002 L 102/48 DIRECTIVE 2004/23/EC of the European Parliament and of the Council of 31 March 2004 Patient Mobility Directive (Directive 2011/24/EU Directive 98/79/EC OJ L331/1(7.12.1998) Directive 2004/23/EC, OJ EU L 102/48 (07.04.2004) Directive 2006/17/EC, OJ L 28/40 (09/02/2006) Directive 2006/86/EC, OJ L 294/32 (25.10.2006) United Kingdom British Nationality Act 1981, 1981 Chapter 61, 30 October 1981 Human Fertilisation and Embryology Act 1990 Surrogacy Agreements Act of 1985 Ukraine Family Code of Ukraine Article 123 (2) Rules for Vital Statistic Registration in Ukraine’ of 10/18/2000 No. 52/5 United States of America U.S. Const. amend. XIV, § 1 Case Law 109 N.J. 396, 537 A.2d 1227, 1988 N.J.77 A.L.R.4th 1. Akerberg,I C-610/11 Judgment 26, [GC] February 2013 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Afroyim v. Rusk, 387 U.S. 253 (1967) Case 6/64 Costa v ENGEL [196] ECR 585.593 Case C-184-99 Grelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la Neuve [2001]ECRI-6193 (31) Case T-315/01 Yssin Abdullah Kadi v Council of European Union and Commission of the European Communities Case C-135/08 Rottmann v Freistadt Bayern, 2 March 2010 Case C-200/02 Zhu and Chen v. Secretary of State for the Home Department [2004]ECR I-9925


C.D. v S.T. C-167/12 Judgment [GC] of 18 March 2014 Cf. Grogan, C-159/90, Opinion of Advocate General Van Gerven of 11 June 1991 [1991] ECR-I-4703 Cour d’Arbitage Case No. 124/2005 ECtHR [GC] 16 December 2010, A,B and C v Ireland, no 25579/05 ECtHR (dec.) 5 September 2002, Boso v Italy, no. 50490/99; ECtHR [GC] 8 July 2004 ECtHR (dec.) 19 May 1976, Brüggeman and Schceuten v Germany, no. 6959/75 ECtHR 28 August 2012. Costa en Pavan v Italy, no.54270/10 ECtHR 15 March 2012, Gas and Dubois v France, no. 25951/07 ECtHR [GC] 19 February 2013, others v Austria, no. 19010/07 ECtHR 1 April 2010, S H and Others v Austria, no.57813/00 ECtHR (dec.) 15 November 2007, S.H. and others v Austria, no. 57813/00 Johnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993) Labassee v France, no. 65941/11 communicated 12 February 2013 Mennesson and Others v France no. 65192/11 Sabine Mayr, C-506/06, Judgment [GC] of 26 February 2008 Op. Advoc. Gen., 3 C.M.L.R. 41 (2008) R v Secretary of State for the Home Department, ex part Daly [2001] UKHL Re L (a minor child) [2010] EWHC 3146 (Fam) Judgment of the Court of 22 October 1998. Ministero delle Finanze v IN.CO.GE.'90 Srl, Idelgard Srl, Iris'90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl. Reference for a preliminary ruling: Pretura circondariale di Roma - Italy. Recovery of sums paid but not due - Treatment of a national charge incompatible with Community law. Joined cases C-10/97 to C-22/97 R v Secretary of State for the Home Department, ex part Daly [2001] UKHL Arrêt de la Cour du 9 mars 1978. Administration des finances de l'État contre Société anonyme Simmenthal. Demande de décision préjudicielle: Pretura di Susa - Italie. Non-application par le juge national d'une loi contraire au droit communautaire. Affaire 106/77 Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle für Getreide und Futtermittel (BVerfGE 37, 271; 1974 2 CMLR 540)


Wünsche Handelsgesellschaft (BvR 2, 197/83; 1987 3 CMLR 225) Re X&Y (Foreign Surrogacy) [2008] EWHC 3030(Fam) Re X&Y (Children) [2011] EWHC 3147 (Fam) Books Andrews, Lori B., ‘Surrogate Motherhood: The Challenge for Feminists, in Gostin eds. Surrogate Motherhood: Politics and Privacy, (American Society of Law and Medicine, U.S.A. 1999) Barker, D.J.P., “Mothers, Babies, and Disease in Later Life” (BMJ Publishing, London, 1994) Bridge, Stuart., ‘Assisted Reproduction and the Legal Definition of Parentage’ in Bainham, A, et al What is a Parent? A Socio-Legal Analysis, (Hart Publishing, Oxford, 1999) Cahn, Naomi R., The New Kinship: Constructing Donor-Conceived Families, (N.Y.U. Press 2013) Choudhry, S., Herring,J.,“The Human Rights Act: Scheme, Principles and Implementation” Europeans Human Rights and Family Law , (Hart Publishers London 2010) Chryssochoou, Dimitris N. Theorizing European Integration( Routledge, New York ,2009) Craig, Paul, and Gráinne De Búrca. EU law: text, cases, and materials. (Oxford University Press 2011) Desai, Keshwar Origins of Love, (Simon & Schuster Ltd New York 2012) Edwards, Jeanette, ‘Ethnographic enquiry in north-west England’ in Edwards et al (eds) Technologies of Procreation: Kinship in the Age of Assisted Conception, (New York, Routledge, 1999) Ekman, K.E., Being and Being Bought: Prostitution, Surrogacy and the Split Self.( Spinifex Press Melbourne 2013) Goode, Erich & Ben-Yehuda, Nachman Moral Panics: The Social Construction of Deviance, (John Wiley & Sons, e-book 2010) Guild, Elspeth, “The Constitutional Consequences of Lawmaking in the Third Pillar of the European Union’ in Paul Craig & Carol Harlow (eds), Law Making In The European Union (Kluwer Law International, (1999) Mitchell,Juliet, Goody, Jack, ‘Family or Familiarity” in Bainham et al (eds) What is a Parent? A Socio-Legal Analysis (Hart Publishing Oxford 1999) Palmer,E., Judicial Review, Socio-Economic Rights and the HRA, (Hart Publishers Oxford, 2009)


Roseberry, Lynn, and Johan Roos. Bridging the Gender Gap: Seven Principles for Achieving Gender Balance. (Oxford University Press 2014) Shachar, Ayelet, The Birthright Lottery: Citizenship and Global Inequality, (Harvard University Press, Boston 2009) Shannley, Mary Lyndon, ‘Infertility, Social Justice and Equal Citizenship’ in McClain et al (eds) Gender Equality: Dimensions of Women’s Equal Citizenship( Cambridge University Press, Cambridge 2009) Yanagisako, Sylvia Junko, and Jane Fishburne Collier. Gender and kinship: Essays toward a unified analysis, (Stanford University Press Stanford 1987) Journal Articles Allen, Anita L. ‘Surrogacy, Slavery, and the Ownership of Life’ (1990)13 Harvard Journal.Law & Public. Policy 139 Allis, Trevor, ‘The moral implications of motherhood by hire”,(1997) 5 Issues in Medical Ethics 1 Anderson, Phillip K. ‘Evaluation of Surrogacy Law and its Potential Development in the UK; Is There a Clear Way Forward?’ (2010) 2 King's Student L. Review, 37 Bagu, K.J., “Ideological refuge v. jurisprudence of insurgency: Cultural Relativism and Universalism in the Human Rights Discourse” (2011) 1 Warwick Student Law Review 1 Bradley J. Van Voorhis, M.D., “In Vitro Fertilization” (2007) New England Journal of Medicine 356 Brooks, Susan L., “A family systems paradigm for legal decision making affecting child custody”, (1996) 6 Cornell Journal of Law and Public Policy 1 Caporaso, James A. "Changes in the Westphalian order: territory, public authority, and sovereignty." (2000) International Studies Review Chill, Paul, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings (October 2003) 41 Family Court Review, Available at SSRN: http://ssrn.com/abstract=1886506 Cloots, Elke. ‘Germs of Pluralist Judicial Adjudication: Advocate Voor de Wereld and other references from the Belgian Constitutional Court’ (2010) 47 CMLRev 645

Davis, Erica ‘The Rise of Gestational Surrogacy and the Pressing Need for International Regulation’, (2012) 21 Minnesota. Journal International Law 120 De Búrca, Gráinne. "The principle of proportionality and its application in EC law." (1993) Yearbook of European Law Vol 13


Deonandan, Raywat, Samantha Green, and Amanda van Beinum. "Ethical concerns for maternal surrogacy and reproductive tourism." (2012) 38 Journal of Medical Ethics 12 Dougan, Michael. "When worlds collide! Competing visions of the relationship between direct effect and supremacy." (2007) 44 Common market law review 4 Koffeman, N., “Legal Responses to Cross-Broder Movemner in Reproductive Matters within the European Union” Paper for Workshop no. 7. Sexual and reproductive rights: liberty, dignity and equality of the IXth World Congress of the IACL CONSTITUTIONAL CHALLENGES: GLOBAL AND LOCAL , Oslo, Norway, 16-20 June 2014 Lin Y and others, 'A hyaluronidase activity of the sperm plasma membrane protein PH-20 enables sperm to penetrate the cumulus cell layer surrounding the egg.' (1994) The Journal of Cell Biology 125(5) Madden, Deidre, ‘An Analysis of Legislative Proposals for Parentage in Assisted Reproduction and Surrogacy’ (2014) 2 Irish Journal of Family Law 52 Mayer, Robert, ‘Sweatshops,Exploitation, and Moral Responsibility’ (2007) 38 Journal of Social Philosophy (4) Munyon, Jessica, ‘Protectionism and Freedom of Contract: The Erosion of Female Autonomy in Surrogacy Decisions’, (2003)36 Suffolk University Law Review 717 Nerlich, Brigitte, Susan Johnson, and David D. Clarke. "THE FIRST ‘DESIGNER BABY’: The Role of Narratives, Cliche´ s and Metaphors in the Year 2000 Media Debate." Science as Culture 12.4 (2003) Sitter, Nick. "The politics of opposition and European integration in Scandinavia: Is Euro‐

skepticism a government‐opposition dynamic?" (2001) 24 West European Politics 4 Smerdon,Usha Rcngachary Symposium: The Baby Market: Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, (2008) 39 Cumberland Law Review. 15 T.R.S. Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference” (2006) 65 The Cambridge Law Journal, 671 W Van Hoof and G Pennings, ‘Extraterritoriality for cross-border-reproductive care; should states act against citizens traveling abroad for illegal infertility treatment?’ (2011) Reproductive BioMedicine Online Veilleux, Danny R,‘ Validity and Construction of Surrogate Parenting Agreement, (1990) 77 American Law Review 4 Reports Child Welfare Information Gateway, Parental Drug Use as Child Abuse” Children’s Welfare Agency, Washington DC 2012 available at https://www.childwelfare.gov/systemwide/laws_policies/statutes/drugexposed.pdf> accessed 12 September 2014


L Brunet a.o., ‘A comparative Study on the Regime of Surrogacy in EU Member States, 2013’ PE 474.403 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, Brussels, 2.7.2008, COM(2008) 426 final Press release no. 64/2005 of 18 July 2005 on the judgment of 18 July 2005 – 2 BvR 2236/04 in English available < http://www.bverfg.de/en/press/bvg05-064en.html> Report on ‘A People’s Europe’ following the Fontaineblue summit of the European Council, COM(84)446 final Press Release issued by Court Registrar ECHR 185 (2014) 26.06.2014 available < http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4804617-5854908#{"itemid":["003-4804617-5854908"]}> accessed 1 October 2014 Update on Romanian Moratorium on International Adoption (6/1/02) Warnock report on human fertilisation and embryology, 984 Jul 28; 2(8396):238-9.1984 Official Journal of the European Union, CE 212, 05 August 2010 (2010/C 212 E/05) Miscellaneous Ali, Lorraine, “The Curious Lives of Surrogates” 29 March 2008, Newsweek online <http://www.newsweek.com/curious-lives-surrogates-84469> accessed 1 October 2014 Anonymous, Telegraph View, “Another EU Threat to National Sovereignty” 14 April 2014 ,The Telegraph online available <http://www.telegraph.co.uk/news/worldnews/europe/eu/10765509/Another-EU-threat-to-national-sovereignty.html> accessed 13 October 2014 Anon, “Inquiry over ‘baby-for-cash deal” BBC online available http://news.bbc.co.uk/onthisday/hi/dates/stories/january/4/newsid_2495000/2495857.stm accessed 17 October 2014 Hammurabi’s Code of Laws (circa 1780 B.C.) Translated by L.W. King http://www.fordham.edu/halsall/ancient/hamcode.asp#text 144-147 Heidenreich, Erin “Made in India” 2014 film Brian, Kate. ‘The amazing story of IVF: 35 years and five million babies later’ The Guardian Online 12/07/2013 <http://www.theguardian.com/society/2013/jul/12/story-ivf-five-million-babies> accessed 16/08/2014 Bohpol tragedy 30 years after the incident see BBC World New look back at the incident, 2009 viewable at http://youtu.be/8Xt_Ddltzn4


Campbell, D., “Egg and sperm donors to be paid more compensation, Human Fertilisation And Embryology Authority approves higher payments in effort to end shortages”,The Guardian online 19 October 2011 available <http://www.theguardian.com/society/2011/oct/19/egg-sperm-donors-more-compensation> accessed 1 October 2014 Craig, Olga, “Elton John baby: "Thanks to Zacahary, gay surrogacy will become more acceptable’”, 02 January 2011, The Telegraph online available http://www.telegraph.co.uk/health/8235149/Elton-John-baby-Thanks-to-Zacahary-gay-surrogacy-will-become-more-acceptable.html accessed 17 October 2014 Dhananjay Mahapatra, ‘German Surrogate Twins To Go Home’, The Times of India (May 27, 2010), available http://articles.timesofindia.indiatimes.com/2010-05-27/india/28279835_1_stateless-citizens-balaz- surrogate-mother accessed 13 October 2014 Edwards, Lizzie, World’s first test tube baby pays emotional tribute to parents for risking global condemnation to have her and pave the way for five million IVF births’ 29/11/2013 Mail Online http://www.dailymail.co.uk/news/article-2515585/Louise-Brown-Worlds-test-tube-baby-pays-emotional-tribute-parents.html accessed on 16/08/2014 Edwards, Robert G. - Facts". Nobelprize.org. Nobel Media AB 2014. Web. 16 Aug 2014. http://www.nobelprize.org/nobel_prizes/medicine/laureates/2010/edwards-facts.html European Commission website: http://ec.europa.eu/justice/citizen/ Ikemoto, Lisa, “The Role of International Law for Surrogacy Must Be Expanded” New York Times, online, 22 September 2014, available at< http://www.nytimes.com/roomfordebate/2014/09/22/hiring-a-woman-for-her-womb/the-role-of-international-law-for-surrogacy-must-be-expanded> “India's Surrogacy Industry Accused Of Exploiting Mothers”- Journey Man Productions May, 2014, ABC Australia available: http://youtu.be/Rj3EodH7lcY Melvin, Don ‘Boy stuck for 2 years in Ukraine arrivesin Belgium’ The Washington Post online 26 February 2011 available at http://www.washingtonpost.com/wp-dyn/content/article/2011/02/26/AR2011022601088.html accessed 18 October 2014 Moral and Ethical Implications, Surrogate Motherhood in India, http://web.stanford.edu/group/womenscourage/Surrogacy/surrogacy_contracts.html Parry, Lizzie, ‘Chinese police bust four major baby trafficking rings rescuing 382 abducted infants and arresting nearly 2000 suspects’ published 28 February 2014, Daily Mail, online available<http://www.dailymail.co.uk/news/article-2570484/Chinese-police-bust-four-major-baby-trafficking-rings-rescuing-382-abducted-children-arresting-nearly-2-000-suspects.html> accessed 13 October 2014 Shaw, Jo and others commentary available at <http://eudo-citizenship.eu/commentaries/citizenship-forum/citizenship-forum-cat/254-has-the-european-court-of-justice-challenged-member-state-sovereignty-in-nationality-law?showall=&limitstart=> accessed 1 October 2014


Tran, Mark, “Apple and Facebook offer to freeze eggs for female employees’ 15 October 2014, The Guardian online available at < http://www.theguardian.com/technology/2014/oct/15/apple-facebook-offer-freeze-eggs-female-employees> accessed October 15, 2014 U.S.Department of State, Bureau of Consular Affairs statement: available < http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/assisted-reproductive-technology.html> Vorzimer,Andrew ‘More Surrogacy Horror Stories out of India’ March 23, 2013, The Spin Doctor online < http://www.eggdonor.com/blog/2013/03/22/surrogacy-horror-stories-india/> accessed 13 October 2014 Visual map on surrogacy policy in the United States published by August 4, 2012, Milwaukee Wisconsin Journal Sentinel online http://www.jsonline.com/news/health/163772546.html

Citizenship and the Stateless Child: Obligations of the European Union

Documents