European Parliament: Surrogacy Included in Amendment on Human Trafficking

The text must still be discussed by the Council and the Commission before being adopted. What will be the scope of the inclusion of surrogacy in the list of offenses at European level?

The directive in which the mention of surrogacy was inserted defines human trafficking as a “serious crime” which constitutes a “violation of fundamental rights”. We can indeed consider that surrogacy infringes these rights in different respects:

– Surrogacy contracts make the woman’s reproductive functions available to others. Now, these qualities relate to her person. They contravene the principles of unavailability of the human body and its non-commodification, regardless of the intended consideration.

– Surrogacy harms the best interests of the child. Indeed, surrogacy arranges the abandonment of a child by the woman who carried it and gave birth to it and also allows the contracting couple to refuse the child if it does not meet their expectations (if it is affected by an illness or has a disability, for example).

In this case, in its provisions relating to surrogacy, the adopted text does not mention the issues for the child. However, the child’s fundamental right to be protected is indeed infringed.

Surrogacy is thus inserted into the directive on trafficking of human beings. Will this inclusion lead Europe to adopt effective measures to condemn such a practice? This point remains uncertain.

If the authors of the proposal and other MEPs who supported the text hope that this measure will make it possible to condemn all types of Artificial Reproduction Technology (ART), both commercial and non-commercial, the rapporteurs defend a different interpretation.

In the words of Malin Björk, rapporteur of the proposal for the Civil Liberties Commission, “the text does not condemn surrogacy in general, but it will criminalize surrogacy in the case of trafficking.”

Not opposed to surrogacy in principle, the rapporteurs affirm that, in the voted text, surrogacy is not necessarily considered as a form of trafficking in human beings, to the extent that there are acceptable forms of surrogacy (known as “ethical” or “altruistic”) which would not fall under the directive.

At the moment, EU member states do not agree on a clear condemnation of surrogacy. Recently, the Belgian Bioethics Advisory Committee issued an opinion in which it considers surrogacy to be “ethically acceptable.”

At the end of 2022, the European Commission voted on a proposed regulation that would require member countries to automatically recognize all aspects of the parentage of children in cross-border situations. If adopted, this text could oblige a state which prohibits surrogacy on its soil to recognize the parentage of a child born through surrogacy in another EU country or even elsewhere.

If the proposed modification of the directive which recognizes surrogacy as a crime under human trafficking is voted on, will the European Union be coherent enough not to impose the recognition of civil status of children born by surrogacy abroad?