Given the imperfection of China's own surrogacy-related legal framework, it makes sense to look for cases from other countries and legal systems that can be used as comparative cross-corroboration of arguments. If we took a glance at European practices, it may further shows the legal position that the intended mother might get into when against the intended father.
European countries have their own different legislation and practice, and their positions on surrogacy vary. According to the findings in the Advisory Opinion, In thirty-one of the states involved, including twelve where surrogacy agreements are outlawed, an intended father who is also the biological father can prove paternity for a child delivered through surrogacy.
Furthermore, in nineteen of the forty-three states, including seven that prohibit surrogacy partnerships, the intended mother can prove maternity of a child delivered through a surrogacy arrangement to whom she is not genetically related.50 The jurisprudence of the ECtHR, on the other hand, has the influence throughout Europe, which is the exact reason of why we will looking into the decisions made by ECtHR.
Table 4
Case No. Surrogacy type
A.M. v. NORWAY 30254/18 gestational surrogacy
PARADISO AND
CAMPANELLI v. ITALY
25358/12 gestational surrogacy
VALDÍS FJÖLNISDÓTTIR
AND OTHERS v.
ICELAND
71552/17 gestational surrogacy
50 ADVISORY OPINION, concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother. GRAND CHAMBER,
https://hudoc.echr.coe.int/fre?i=003-6380464-8364383
MENNESSON v. FRANCE 65192/11 gestational surrogacy
In Table 4 above, The analysis of the case law of ECtHR can be divided into two parts: it starts from the case of A.M. v. NORWAY, which is highly relevant to the main issue of this paper. For this only case that will be illustrated in the following content, we are going to discuss the maternity, the restrictions of adoption, the potential inequality between intended parents and the disadvantaged position of intended mother when against the father. The other case laws are well evaluated in many other surrogacy-related researches, together they offer a guidance on how to deal with future surrogacy cases. They will not be discussed in depth here in this article.
Disadvantaged position of the intended mother: CASE OF A.M. v.
NORWAY
511.1.Case Summary
The applicant (intended mother) and E.B.(intended father), started to be in contact with a surrogacy agent company in the USA for the gestational surrogacy arrangement since 2010.
After the relationship between the applicant and E.B. ended in 2013, they still continued their surrogacy cooperation. It was not until 21 July 2013 had the surrogacy been processed successfully. A fertilized (by the sperm of E.B.) donor egg (from an unknown woman) was successfully transferred to a surrogate mother and the pregnancy was confirmed. The applicant and E.B. made sure that the applicant was recognized as the child’s legal mother in the United States and after the birth of the child (“X”) on 19 March 2014, she was registered as X’s mother on the birth certificate.
The applicant and E.B. rented two apartments separately in the USA following the birth. X stayed with the applicant while E.B. visited daily. There is no provided information that shows on what basis X travelled and entered Norway. After they are back in Norway, they kept the same arrangement that X stayed with the applicant while E.B. visited daily, until the applicant and E.B. were unable to agree on how to organize daily care and contact in respect
51 A.M. vs NORWAY, 30254/18, https://hudoc.echr.coe.int/eng?i=001-216348.
of X. On 14 August 2015, E.B. decided to cut off further contact between the applicant and X, and X since lived with E.B.
The applicant claimed that the failure of the domestic authorities to grant her contact rights in relation to X or to recognize her as X's mother, either by acknowledging the birth certificate issued in the United States or by approving her requests for parenthood, amounted to a violation of her right to respect for her private and family life, as guaranteed by Article 8 of the Convention.52
In the decision of ECtHR, the majority of the court has decided that there has been no violation of Article 8 (the right to private life) or Article 14 of the Convention (discrimination).
1.2 Norway's legal attitude towards surrogacy
Although there was once a temporary Surrogacy Act on the transfer of parenthood for children in Norway born to a surrogate mother abroad (surrogatiloven) of 8 March 2013, the Norwegian legislature hasn’t legalized surrogacy since the temporary Act expired. During the procedure of the case here we mentioned, surrogacy in Norway remains prohibited.
1.3 Legal relationships between intended parents (the applicant and E.B.) and child X
Paternity: The Norwegian Labour and Welfare Administration accepted E.B.’s acknowledgement of paternity of X on 14 May 2014. He had been registered as having sole parental responsibilities.
Maternity: According to Section 2 of the Children Act, the woman who has given birth to the child is considered the mother. As a result, even though the applicant was identified as X's
52 Article 8 of the Convention
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
mother on the birth certificate, she cannot be registered as X's mother. K.J. (surrogate mother) would be registered as the mother until any potential adoption happens.
1.4 The possibilities of establishing maternity 1.4.1 Adoption
In the court decision it was stated in paragraph 109 that “the respondent State(Norway)’s lack of a recognition of the applicant’s parenthood, including that the applicant could not adopt X since his father, E.B., did not consent”. The relevant provision founded as Section 7 of the Adoption Act of 28 February 1986 (adopsjonsloven):
Section 7
“A child under 18 years of age may not be adopted without consent from the person or persons holding the parental responsibilities. If either of them has disappeared or suffers from mental disorders or mental impairment, consent from the appointed guardian is required.”53
1.4.2 Stepmother-child relationship
In Norway as well as many other European countries, simplified procedure will be applied for the stepmother (or used to be) to adopt the (former) partner’s child. However, whether this can be extend to include the surrogate child who is only genetically related with one of the intended parents? In 2014, the Adoption Act Committee proposed to offer the intended parent the same opportunity as a stepparent to adopt a child following a breakdown in the relationship with the child's biological parent. Meanwhile more narrow conditions could be set for the use of stepparent-adoption following assisted reproduction than normal stepparent-adoption. Nevertheless, the proposal had been rejected because of codifying such a clause in the legislation might send the wrong signals and be seen as approving of assisted reproduction methods like surrogacy, which are illegal in Norway.54 Therefore as the High Court concluded, under Norwegian law, “maternity could only be established by the woman giving birth to the child herself or by permission being granted for adoption.”55
53 A.M. vs NORWAY, 30254/18, https://hudoc.echr.coe.int/eng?i=001-216348.
54 Para 66-68
55 Para. 68
1.5 The consideration of child’s best interests and the margin of appreciation
In the paragraph 133 and 134 of the judgement, a decision was drawn that “the outcome (which is made by the Borgarting High Court) must be considered to fall within the margin of appreciation afforded to domestic authorities”. While it is evident that the applicant was placed in a difficult situation, an evaluation of the interests of all persons concerned, as well as a balance of competing interests, is essential. In the end, it was not in X's best interests to approve the applicant's claims.56
However, according to the dissenting opinion of judge Jelić, who considered that failing to recognize the applicant as X's legitimate mother (and thereby restricting her visiting rights) was not appropriate in regard of the given the facts, and the applicant was treated unfairly and discriminatorily as a result of the sole authority of E.B., the margin of appreciation of the respondent State (Norway) was too broad. The Advisory Opinion57 was cited to support his opinion, that “(the court explained that) where a particularly important facet of an individual’s identity was at stake, such as when the legal parent-child relationship was concerned, the margin allowed to the State was normally restricted. It inferred from this that the margin of appreciation afforded to the respondent State needed to be reduced” (Advisory Opinion P16-2018-001, paragraph 44). Thus if the child's best interests play a role in the evaluation by a national court, the discretionary power given to the authorities must be reduced to allow the child's interests to take precedence.58 The Norwegian authorities applied a rigid law that automatically regard the birth mother as the legal mother of the child without considering aspects such as the joint will of parents to have and raise a child, the inability of the intended mother to reproduce through natural ways, etc. He further concluded that:
56 Para 133-134
57 ADVISORY OPINION, concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother. GRAND CHAMBER,
https://hudoc.echr.coe.int/fre?i=003-6380464-8364383
58 A.M. vs NORWAY, 30254/18, https://hudoc.echr.coe.int/eng?i=001-216348. Para.25of DISSENTING OPINION OF JUDGE JELIĆ
“The authorities should be able to apply an individualized approach and adapt the determination of motherhood to the applicant’s individual situation, so as to take account of the diverging interests in each case.”59
1.6 The disadvantaged position of the intended mother
A.M. vs Norway to some extent shows similarities with the Chinese cases. We therefore conclude that the disadvantaged position of the intended mother in custody cases against the intended father of the surrogate child consists of the following points.
1) Failure of the recognition of the maternity of the intended mother. Due to the fact that the applicant is not the birth mother of X, she could not be registered as X’s mother in the absence of valid adoption of him while the father is able to have sole parental responsibilities of the child. Here in this case the intended mother is not the ovum provider, however in a gestation surrogacy scenario, even if the intended mother is genetically linked to the child, the legal mother should still be the surrogate mother who actually give birth to the child according to many different legal systems’ regulations and practices. This means that even in cases where both intended parents are genetically linked to the child, the intended mother will still not automatically granted motherhood under many legal systems, while the genetically linked father is more easily identified as the biological father and gain the parental rights.
2) Restrictions to adoption. In the final conclusion of the Opinion, the second point provided adoption as a possible way to recognize the intended mother’s maternity. The child's right to respect for private life, as defined in Article 8 of the Convention, does not require such recognition to take the form of entry in the register of births, marriages, and deaths of the details of the birth certificate legally established abroad; another means, such as adoption of the child by the intended mother, may be used provided that the procedure laid down by domestic law ensures that it can be implemented promptly and effectively, in accordance with the provisions of the Convention.60 However, back to the discussion of A.M. vs Norway, even when the intended mother tries to go through the procedure of adoption, the
59 Para. 27 of DISSENTING OPINION OF JUDGE JELIĆ
60ADVISORY OPINION, concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother. GRAND CHAMBER,
https://hudoc.echr.coe.int/fre?i=003-6380464-8364383
father, who have legal parental rights, can make his own decision about whether she can adopt the child. According to paragraph 109, the adoption requires the father’s consent, which leads to that in the conflict between the applicant and E.B., the applicant as the intended mother of the surrogate child is put into an extremely unfavourable position.
Although the decision to arrange surrogacy is made by both, the intended parents do not have the same rights over the surrogate child. Under this circumstance, the intended mother, when confronted with the intended father, would be caught in the same dead-end situation which is under the father’s control.
Although this case and relevant provision is based on Norwegian domestic law, the consent of the natural parents is almost an indispensable requirement when at least one of the legal parents is still able to support the genetically related child. Regardless of how the rules of adoption vary from nation to nation, the risk of doing one-sided harm between the intended parents would still exist if only one of them can be recognized as the legal parent. In the Chinese case analysis, although the total number of cases is relatively small, almost all of them have been decided in favour of the biological father. In this respect, the reversal of Chen Ying vs Luo Ronggeng shall be regarded as a benchmark and a step forward, but it has not yet been further developed in the more recent cases of China. It is for the protection of women that the ban on surrogacy was established, but in practice, it has to some extent devalued women's rights.
3) Restrictions caused by the illegality of surrogacy. In countries that ban surrogacy or not in favor of it, giving simplified access for the intended mother to build up mother-child relationship or recognize the maternity in court decisions would be against the existing regulations or the public order, thus the judges and legislators have to be very cautious. In the Norwegian case here, it is mentioned that there were opinions in favor of that the stepparent-adoption can also apply to cases concerning adoption after surrogacy.
Nevertheless, the proposal of “giving the intended parent the same possibility as a stepparent to adopt a child following a breakdown of the relationship with the child’s biological parent”
might send the wrong signals and be seen as approving surrogacy, therefore rejected. In the cases of China, the judges of Chen Ying vs Luo Ronggeng does not recognize de facto adoption, again for this reason.
4) Disadvantageous position resulting from the pendency of the case. When a custody dispute arises, it is often the case that one of the parties is prevented from seeing the child and files a corresponding dispute for the confirmation of mother-child relationship, custody and visitation rights. What's worse is that the outcome of such a judgement often keeps this unfair arrangement: as time is consumed during the trial, the child would have higher possibility to be considered as forming a stable life with current family members. Therefore the reference to "private life" by the Chinese courts, as well as the European Article 8 of the Convention, may lead to a further disadvantage over time for the person whose rights have been violated.