Master thesis Yael Elsen
Access to surrogacy for homosexual couples in Europe
Addressing the patchwork of legislation on surrogacy based on
Article 8 European Convention on Human Rights
Name: Yael Elsen
E-mail: elsenyael@gmail.com
Student number: 12326216
Master track: European Private Law Supervisor: mw. prof. dr. C. Mak Second reader: mw. dr. A.E. Oderkerk Date of submission: July 11, 2019
Abstract:
Since, a consensus on allowing surrogacy has not been reached, there is a lack of legislation and case law on the European and national level. Therefore, fertilization clinics have been very hesitant to give access to gestational surrogacy in The Netherlands. There is a lot of uncertainty on the topic of surrogacy and reproductive technology in general, which make it not surprising that these issues are a lot in the news. The lack of clarity on this topic is also present in other European countries. For that reason, no success has been achieved on the European level in order to find political consensus on this issue. Thus, no coherence can be found in European legislation.
Homosexual couples are dependent on surrogacy to have a child with a link to one of the fathers. IVF in combination with surrogacy makes this possible. This makes the question if there should be a legal basis to access reproductive technology for homosexual couples interesting. Since most of the existing case law concerning surrogacy is based on Article 8 European Convention on Human Rights, this thesis addresses the question if a justification for surrogacy legislation may be found in this Article.
In light of a lack of case law on this issue, the focus of this research is on underlying rights and principles in order to answer this question. The thesis starts by outlining the legal framework of Article 8 European Convention on Human Rights. Second, the underlying principles and rights of stakeholders are discussed. Lastly, recommendations are made based on the common threads that have been found. The best interest of the child is found to be a leading principle on this issue. Therefore this principle should be the focus in further developments on reproductive technology in Europe.
They want me to be the surrogate. It’s her egg and his sperm. I’m just the oven. It’s totally their bun.”
Phoebe Buffay1
1 Hatzis 2003
Table of contents
1. Introduction 4
1.1 Definitions 4
1.2 European complexity 5
1.3 Methodology 6
2. The legal framework of Article 8 European Convention on Human Rights 8
2.1 Family life 8 2.2. Private life 9 2.3 Case law 9 2.3.1 Gamete donation 10 2.3.2 Surrogacy 12 2.4 Remaining questions 14
3. Rights of stakeholders and underlying principles 15
3.1 National legal framework 15
3.2 The child 15
3.2.1 The child’s best interest 16
3.2.2 The right to know one’s descent 16
3.2.3 The unborn child 18
3.3 The intended parents 19
3.3.1 Surrogacy contract 19
3.3.2 The right to start a family 21
3.4 Surrogate mother 21
3.5 Remaining questions 22
4. The modernized fair balance 23
4.1 Rights for homosexual couples 23
4.2. The Netherlands vs. The United Kingdom 24
5. Conclusion 28
6. Bibliography 29
1. Introduction
In 2005 the media in The Netherlands and Belgium exploded because of the dispute about a child born through surrogacy: Baby Donna. When searching the internet on Baby Donna, headlines appear regarding ‘The selling of a baby’.2 This cross-border case exemplifies what
kind of legal issues can arise when contracting with a surrogate. In the Baby Donna case, two Belgian couples decided to arrange a surrogacy contract. The surrogate couple agreed with the intended parents that the sperm of the intended father would be used through IVF treatment and after the birth the child would be assigned to the intended parents. However, the couples got into a disagreement and the contact between them ended. The surrogate couple arranged a new surrogacy agreement with a Dutch couple. After the child’s birth, this couple became Donna’s foster parents, with the intention to adopt Donna after a year.
However, after Donna’s birth, the Belgian intended parents started to claim custody. This evolved in a legal and media escalation between two couples in different countries that claimed to have the right to be Baby Donna’s parents.3 In 2015 the NPO released the
documentary ‘Baby Donna, ten years later’ in which the Dutch couple, that has been caring for Donna since her birth, explains how this process has been emotionally and financially exhausting for the family. Furthermore, they disclose how this rough start of Donna’s life has influenced and is still influencing her personal life.
This case has been an incentive to ask questions to the Dutch House of Representatives (de Tweede Kamer). The Dutch Minister of Justice acknowledged in a letter to the House of Representatives that in order to fulfill a wish to have children, people go across biological, legal and national borders. This is possible through the internet, globalization and mainly because of the evolving reproduction techniques.4
More recently surrogacy was in the news in The Netherlands regarding a change of
interpretation of the law. Initially, it was only possible to conceive a child through surrogacy when both parents were biologically linked to the child.5 This meant the exclusion of
homosexual couples of this possibility. However, in 2016 the Dutch Society for Obstetrics and Gynecologists (Nederlandse Vereniging voor Obstetrie en Gynaecologie, or NVOG) stated that accessing surrogacy should be considered a possibility for homosexual couples.6
This led to the first IVF-clinics in The Netherlands confirming access to gestational surrogacy for homosexuals in 2018.7
1.1 Definitions
Before exploring more about this topic it is important to set out which meaning this research gives to the crucial definitions. One of the main topics in this research is surrogacy which is the only way for homosexual couples to conceive a child, who has a biological link to one of the parents. This is a form of reproductive technology which entails the use of medical or other technology in order to help a person in reproduction. The couple that will be raising the child, the intended parents, agree with a surrogate mother that she will carry and give birth to a child for them. Technology enables two options for the intended parents: The first is
2 See for example https://nos.nl/artikel/2037262-was-baby-donna-gekocht-of-niet.html 3 ECLI:NL:RBUTR:2005:AU4934 (Baby Donna): See also C. Mak, annotation from:
ECLI:NL:RBUTR:2008:BD1068 (Baby Donna)
4 Kamerstukken II 2009/10, 32 123-XVI-30, nr. 30 5 Directorate-general for internal policies 2013, p. 303 6 NVOG 2016, p. 47
traditional surrogacy which is also called low-technological surrogacy. This technology
entails the use of the surrogate mother’s eggs that will be fertilized with the sperm of one of the intended parents or a donor.8 This entails that the surrogate mother is the biological
mother and therefore in most countries the legal mother. The latter follows from the ‘mater
semper certa est’ principle which entails that the woman that gives birth is the legal mother
of a child.9 The second option is through gestational surrogacy, also called
high-technological surrogacy in which the eggs of the surrogate are not used. The pregnancy follows from IVF treatment using the eggs and sperm of either the intended parents or donors. Homosexual couples are in any case dependent on egg donation. The existence of these technologies does not include the availability of these facilities according to legislation.
Gamete donation is used as a collective definition for egg and sperm donation. Lastly, a
distinction is made between two types of surrogacy. When a surrogate mother only receives remuneration for the necessary expenses made during the process, this is indicated by the definition of altruistic or non-commercial surrogacy.10
However, in some cases, the surrogate mother receives remuneration for her service. This type of surrogacy is indicated as commercial surrogacy.11
1.2 European complexity
There is a trend to travel abroad for women’s surrogacy services to those countries in which these services are legal. This reproductive tourism has evolved as a result of incompetence to legislate on Family Law by the European Union. In addition, no surrogacy regulations can be found at the European level which leaves this a task for the national legislator.12
Nevertheless, surrogacy has not been regulated in all countries, like in the Netherlands. In this country, the only provision found regarding this issue is the prohibition of commercial surrogacy in Article 151(b) Dutch Criminal Code (Wetboek van Strafrecht). If multiple countries are compared it can be concluded that there is legal diversity in Europe concerning this issue of IVF and surrogacy. This legal diversity causes issues at the national level, especially in cross-border situations. Different national legislation concerning surrogacy may lead to conflicts regarding the legal recognition of the child and thus to legal uncertainty.13
Procreative tourism evolves from this diversity as a consequence of parents going abroad for the availability of techniques. This can lead to conflicts with children’s rights because of child traffic, the risk of statelessness and identity problems.14 Furthermore, no coherence can
be found within the European case law. In addition, there is no consistency in how the European Court of Human Rights (ECtHR) treats citizens who have gone abroad to conceive a child.15
Because of the lack of European and national provisions, fertilization clinics have been very hesitant to give access to gestational surrogacy in The Netherlands. Specifying this question on male homosexual questions is interesting because they are missing a womb in their relationship. Therefore they can only become biological parents through surrogacy. In addition to the hesitation of the fertilization clinics, access to reproductive technology for
8 Directorate-general for internal policies 2013, p. 12 9 Duggan 2014, p. 4
10 Directorate-general for internal policies 2013, p. 12 11 Engel 2013, p. 2
12 Koffeman 2016, p. 1 13 Engel 2013, p. 3
14 Staatscommissie Herijking Ouderschap 2016, p. 95 15 Engel 2013, p. 1
homosexual couples has been very limited. This raises questions with regard to the access for homosexual couples at the national level along with the European level. For that reason, the focus in this research will be on male homosexual couples that are limited in their access to reproductive technology resources to gestational surrogacy. For that reason, only male couples will me meant by homosexual couples in this research. In case of a legal conflict often an appeal will be made to Article 8 European Convention on Human Rights (ECHR).16
Therefore it is interesting to analyse the following:
‘To what extent should Article 8 ECHR provide for a legal basis to access reproductive technology for homosexual couples?’
Since there is a lack of regulations and case law concerning this question, there will be
particular attention for relevant guidelines and principles. Regarding the increasing number of modern family types such as single parenthood and homosexual parenthood, it is predictable that more litigation will develop with respect to this topic. Elaborating these guidelines and principles will provide for a basis for recommendations on how the court should reason in the future. In order to conclude this research, first, the current legal framework of Article 8 ECHR in Europe will be described. Attention will be given to gamete donation since this is a crucial part of the access to surrogacy of homosexual couples. Second, the stakes and
principles that can influence a legislator in the decision about whether people have access to reproductive technology will be discussed. In order to start the discussion about this specific topic, a comparison will be made between The Netherlands and The United Kingdom. These countries did not explicitly ban surrogacy which makes them interesting to start this
research.17
1.3 Methodology
The rationale behind this research fits with The Common Core of European Private Law
Project. The goal of this research is not to create new European legislation on reproductive
technology and subsequently imposing said legislation on countries. Rather, it aims to address general principles that form the reasoning of countries on this topic and to analyse and compare them. By doing so, already existing common general principles may be found that could guide the European legislator in the future.
In its comparison, The Common Core of European Private Law Project adopts Rodolfo Sacco’s methodology of legal formants. This technique includes all aspects of ‘the living law’ of a country that Sacco indicates as all legal formants of a system. This implies the legal rule given by case law, scholars, statutes and the dynamic between the given definition and the actual rationale of the decision.
This research is in line with the mentioned elements of The Common Core of European
Private Law Project. An analysis is made of the current legislation and case law concerning
IVF and surrogacy based on Article 8 ECHR in selected countries and of the ECtHR. By doing this an attempt is made in order to find the legal formants which might be coherent in the systems however, the interpretation might differ. This method is particularly interesting for this topic because there is a lack of case law concerning access to IVF and surrogacy.
16 M. Engel 2013, p. 7
Therefore the underlying principles will be taken into account in order to consider how the ECtHR should litigate these issues.
In order to compose a recommendation, the main research will adopt an internal perspective and have a descriptive character. Based on these findings the conclusions will have a
normative character. In Chapter 2 there will be a comparative element between The Netherlands and The United Kingdom to analyse the view of relatively tolerant countries. Furthermore, Spain will be briefly mentioned in order to create a contrasting aspect. Chapter 3 will have a prescriptive character in which recommendations will be made to the ECtHR of how the court should act in future litigations regarding access to reproductive techniques with a focus on homosexuals.
2. The legal framework of Article 8 European Convention on Human Rights
The ECHR states in Article 8 ECHR that ‘Everyone has the right to respect for his private and family life.’ The main objective was to protect citizens against State intervention in their private and family life. In addition to by the ECHR acknowledged negative obligation, there is a positive obligation to respect and protect the private and family life.18 A broad margin of
appreciation creates a lot of space for national influence on the interpretation of Article 8 ECHR.19 This broad interpretation raises questions such as: What do they specifically mean?
Which rights can a European citizen derive from this provision? To which extent does Article 8 ECHR affect one’s human body? In order to answer these questions, it is crucial to analyse the interpretation giving to Article 8 ECHR by outlining the legal framework created by the legislator and the ECtHR.
2.1 Family life
Article 8 ECHR protects the right to respect for family life. Looking at the phrasing of the Article the ECtHR does not distinguish between “legitimate” and “illegitimate” family since this would be conflicting with the word “everyone”.20 Whether there is family life, is
dependent on the factual question if there exist close personal ties between persons.21 In the
assessment of this question, the ECHR takes several factors into account including if the couple lives together, the length of their relationship and whether they have children
together.22 In his conclusion of this question, the ECtHR does not remain with the traditional
family picture regarding the family relationship between parents and children. The accepted new family types include that marriage is not a requirement and that single-parenthood and same-sex parenthood are recognized.23
Between the child and the woman that gives birth to the child exists family life, regardless of whether there is a marriage with a man.24 The ECtHR has not ruled yet on surrogates that do
carry the child but do not have a biological link with him. The court did consider that a biological link with a man has to be enhanced with other factors in order to establish a family relationship between father and child.25 By this distinction, the court seems to give great
emphasis to the biological link between the child and the biological mother. This raises the question of how legislators should respond in order to take into account this given weight to a bond between the child and the biological mother. However, the emphasis that has been given to the biological fatherhood has been recognized as sufficient to establish private life.26 Based
on case law the Dutch Advisory Committee (Staatscommissie Herijking Ouderschap) stated that a biological link does not guarantee family life and the absence of such a link does not prove the absence of family life.27
18 ECHR 13 June 1979, 6833/74, (Marckx/België) 19 Hellemondt, van 2018, p. 1
20 Forder 2015, p. 4
21 ECHR 13 December 2007, 39051/03 (Emonet t. Zwitserland)
22 Thomas 2019, p. 114; also ECHR 26 March 1985, 21830/93, (X, Y, and Z v. the United Kingdom) 23 Forder 2015, p. 3
24 Forder 2015, p. 4 25 Forder 2015, p. 5
26 ECHR 26 June 2014, 65192/11, (Mennesson vs. France)
27 Staatscommissie Herijking Ouderschap 2016, p. 261, See also: ECHR 22 March 2012, 45071/09
2.2. Private life
Developing an exhaustive definition of ‘private life’ is not the intention of the Court: it is simply impossible and unnecessary.28 Nonetheless, many principles derive from the right to
private life that affects the human body and determine if interference to one’s human body is (il)legitimate. The foundation of Article 8 ECHR consists of the rights to human dignity, human integrity, and personal autonomy.29 Protection of interference with the physical and
psychological integrity are acknowledged rights protected under Article 8 ECHR.30 These
include aspects that form the physical, social and ethnical identity of a person.31 The
informed consent of an individual is required in order to justify an interference with
someone’s physical integrity.32 Furthermore, the right to integrity is captured in Article 3 of
the Charter of Fundamental Rights of the European Union. This provision further specifies the right to integrity in the fields of medicine and biology by including a free and informed consent, a prohibition on genetic practices aiming at selection of persons and a prohibition on cloning. In addition, personal autonomy is also considered a fundamental element of private life and is covered by Article 8 ECHR.33 This right to self-determination gives everyone the
right to determine what happens with his or her body.34 Lastly, the human dignity is also
inviolable according to Article 3 of the Charter of Fundamental Rights of the European Union.
Remaining rights relating to the human body that are covered by Article 8 ECHR and can be linked to the previously mentioned rights are the right to personal development, the right to establish and develop relationships with other human beings,35 the mutual enjoyment of
members of a family of each other,36 health information,37 sexuality,38 gender identity.39 In
cases concerning these rights and involving minors, the best interest of the child always has to be the primary consideration.40
2.3 Case law
Many of the mentioned rights can be found in reproductive technology case law. Because there is internationally a lack of consensus, the court applies the doctrine of margin of appreciation.41 This doctrine allows the individual countries discretion to determine how to
safeguard ECHR rights. In addition, the court has to strike a fair balance between interests involved (the child, the surrogate mother, the intended parents). An indication of the criteria needed for consideration has been given:
28 Koffeman, Morally Sensitive Issues 2015, p. 91
29 Koffeman, Commentaar op Verdrag tot bescherming van de Rechten van de Mens en de Fundamenttele
Vrijheden 2015, p. 2
30 ECHR 26 March 1985, 8978/80, par. 22 (X en Y vs. The Netherlands) 31 Koffeman 2015, p. 91
32 Hellemondt, van 2018, p. 2
33 ECHR 29 Apri 2002, 2346/02 (Pretty vs. The United Kingdom); also ECHR April 10 2007, 6339/05
(Evans/Verenigd Koninkrijk)
34 Koffeman, Morally sensitive issues 2015, p. 257
35 ECHR 29 April 2002, 2346/02 (Pretty vs. The United Kingdom) para 61 and 65 36 Thomas 2019, p. 17 37 Forder 2015, p. 91 38 Forder 2015, p. 96 39 Forder 2015, p. 91 40 Thomas 2019, p. 17 41Beers, van 2009, p. 174
“A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the countries of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or ECHR rights.”42
The wide margin of appreciation in ethical and moral cases is a result of the different
interpretation countries give the content of these morals.43 Nevertheless, the ECHR has made
some attempts to strike a fair balance in its case law regarding reproductive technology. Furthermore, this lack of consensus has led to a lack of case law concerning access to reproductive technology. Therefore, the ex-post case law in which the child is already born will be taken into account. In this case, law principles can be found that should also be applicable to the ex-ante situation.
2.3.1 Gamete donation
In many cases of gamete donation, one of the intended parents is infertile or has a disorder. In the case of same-sex couples, there is the lack of one type gamete, for homosexual couples an egg cell will be missing. Therefore, homosexual couples are always dependent on gamete donation in case they want a biologically linked child. For this reason, the ECtHR case law regarding gamete donation is of importance for this research. An overview will be given of the relevant case law regarding gamete donation and the access to it.
In the case of Dickson vs. The United Kingdom the applicants did not have any fertilization problems, however, this case concerned the access to reproductive technology. The first applicant was imprisoned and by the time of release, the chances for the couple of becoming pregnant were small because of the second applicant’s age.44 Therefore, they applied for
facilities of artificial insemination, however, their request was denied by the Secretary of State. He reasoned based on the concern that by allowing access to artificial insemination the punitive and deterrent aim of the imprisonment was reduced.45 Nonetheless, the ECtHR ruled
that Article 8 ECHR was applicable to the complaint of applicants concerning their access to artificial insemination. It ruled that the refusal affected applicants right to respect for their choice to become biological parents and therefore their private and family lives.46 The
ECtHR concluded that a fair balance was not struck between the public and private interests and that too much weight was given to the public opinion. Thus the court acknowledged the right of access to artificial insemination of the couple.47
In the S.H. and Others v. Austria case, the applicants were heterosexual couples of which one person was infertile. Because they had the wish for a child with a biologic link, they were dependent on reproductive technology. Since the Austrian Artificial Procreation Act
prohibited the use of donor sperm and donor eggs they did not have access to this option. The rationale behind this legislation was to ensure that the permissible methods would remain close to natural conception, prevent exploitation of the techniques, protection of human
42 ECHR 10 April 2007, 6339/05 (Evans vs The United Kingdom) para 77 43 Gerards 2019, p. 177, 178
44 ECHR 4 December 2007, 44362/04 (Dickson vs .The United Kingdom) para 12 45 ECHR 4 December 2007, 44362/04 (Dickson vs. The United Kingdom) para 13 46 ECHR 4 December 2007, 44362/04 (Dickson vs. The United Kingdom) para 66 47 ECHR 4 December 2007, 44362/04 (Dickson vs.The United Kingdom) Para 85
dignity and the welfare of the child.48 Although the court acknowledged the right to access
reproductive technology, it also emphasized that this right is not absolute.49 The ECtHR ruled
that when limiting the access to reproductive technology the infringement of Article 8 ECHR can be legitimate. In S.H. and Others v. Austria, the ECHR concluded that there was no violation of Article 8 ECHR because the infringement was justified.
The court did acknowledge there is a European consensus emerging in countries towards allowing gamete donation for the purpose of IVF.50 However, the ECtHR is still very
reluctant to let this be decisive because this view is not based on long-standing principles established in the law.51 Thus, a patchwork of different legal views amongst countries
remains to be the status quo. For that reason, the court emphasized in S. H. and Others vs.
Austria that this is a dynamic field of law that is continuously evolving and has to be revised
regularly.52 In the following years, the case law seems to meet this standard of the ECtHR.53
However, the margin of appreciation remained broad which permits the countries to apply an appropriate standard in accordance with their national norms.
Because of the increasing number of reproductive technologies, a relevant question would be: How far are intended parents allowed to go in order to fulfill their parental wish? Although the right to have a child has never been acknowledged, confusion emerged because similar rights are protected under Article 8 ECHR such as: The right to become a biological parent, the access to IVF treatment and even the desire to use IVF in order to create a healthy embryo.54 The latter was decided in the Costa and Pavan v. Italy case. Applicants were
carriers of a hereditary disease, the transfer of which to their desired child they wanted to prevent. The national law, in this case, made access to reproductive technologies for heterosexual couples only available when they are infertile and prohibited the use of preimplantation genetic diagnosis (PGD). The applicant already had an abortion in the past because the embryo appeared to have the disease. She claimed that by examining the embryo before transfer into the womanan abortion could be avoided.55 Currently, the woman could
only discover if the fetus she was carrying had the disorder at the stage that the fetus was not an embryo anymore.56 The applicants appealed that this led to a disproportionate situation.
The ECtHR ruled that the wish for a healthy child is an expression of their private and family life.57 Furthermore, it found the possibility in the national legislation for abortion on medical
grounds and the prohibition of PGD to be inconsistent and contradictory.58 This led to the
final decision that the national restrictions interfered with applicants rights to respect of
48 Hoof, van 2012, p. 666, See also: Annotation van Beers
49 See facts of ECHR 4 December 2007, 44362/04 (Dickson vs. The United Kingdom) 50 ECHR 3 November 2011, 57813/00 (S.H. and Others v. Austria) para 96
51 ECHR 3 November 2011, 57813/00 (S.H. and Others v. Austria) para 96 52 ECHR 3 November 2011, 57813/00 (S.H. and Others v. Austria) para 118
53 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy), See also: ECHR26 June 2014, 65192/11
(Mennesson vs. France), See alos: ECHR August 27 2015, 46470/11 (Parrillo v. Italy), See also: ECHR January 24 2017, 25358/12 (Paradiso and Campanelli v. Italy), See also: ECHR September 23 2018, 27986/02
(Dickinson vs. United Kingdom)
54 ECHR 27 August 2015, 46470/11 (Parrillo v. Italy); also Concurring opinion of judge Pinto de Albuquerque para 32; also ECHR 23 September 2018, 27986/02 (Dickinson vs. United Kingdom), See also: ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy)
55 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy) para 9, 10 56 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy) para 62 57 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy) para 57 58 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy) para 62
private and family life and allowed intended parents to influence the fertilization process.59
Nowadays some countries go along with this tendency to allow the fertilization process being influenced in order to create a healthy embryo. The United Kingdom, for example, has accepted one of the newest forms of IVF, maternal spindle transfer, in which the egg cells of two women and the sperm of one man are used in order to prevent transfer of the hereditary disease to a child.60 The access to this treatment is restricted to women that are at very high
risk of transferring the disease.61
The court seems to make a difference based on the week of growth the embryo is in. The court ruled that abortion within the first fourteen week does not infringe Article 2 ECHR.62 In
the Costa and Pavan v. Italy case, the Italian Government justified the limited access to reproductive technology amongst other things based on the health of the child. Furthermore, the ECtHR emphasized, in that case, the distinction between an ‘embryo’ and a ‘child’.63 A
question arising in this distinction is whether an embryo can appeal to human rights? In
Evans vs. The United Kingdom case a couple had created embryo’s through reproductive
technology because of medical reasons. The woman had pre-cancerous tumors in both
ovaries and therefore they were removed after the extraction of eggs. The extracted eggs were the only possibility the woman had to conceive a biologically linked child. It was advised not to freeze the eggs but to immediately fertilize them and thus all were used to create embryos for the couple. However, before the use of an embryo, the couple divorced and for that reason, the man did not want the embryos to be used anymore. The woman still had the wish of a biological child and because the embryos were not transferred yet, the period of fourteen weeks pregnant had not started yet. In this case, the ECtHR adjudicated in line with the previous case law: Since there is no European consensus on this subject it is ruled that the interpretation of the beginning of life falls within the margin of appreciation of countries.64
The judge adjudicated according to the national law that an embryo does not have a right to life.65 However, in the Parrillo v. Italy judgment the judges seemed more hesitant towards
this anti-life principle. The statement made by the court is in fact very self-contradictory.66
The only explanation for this is a lack of consensus within the Grand Chamber concerning which view should prevail.67
2.3.2 Surrogacy
The only possibilities for a homosexual couple to fulfill their wish for a child is either adoption or through gestational surrogacy with the use of IVF-treatment. Furthermore, this IVF surrogacy is the only option for one of the fathers to have a biologic link with the child. Since there is a lack of case law concerning surrogacy treatment for homosexual couples, the analysis includes the case law of the treatment for homosexual couples. This case law will
59 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy) para 71 60https://www.bionews.org.uk/page_96351
61
https://www.hfea.gov.uk/treatments/embryo-testing-and-treatments-for-disease/mitochondrial-donation-treatment/
62Beers, van 2009, p. 282; also
ECHR 26 March 1985, 21830/93, (X, Y, and Z v. the United Kingdom)
63 ECHR 28 August 2012, 54270/10 (Costa and Pavan v. Italy) para 61, 62
64 ECHR 8 July 2004, 53924/00 (Vo v. France), ECHR 10 April 2007, 6339/05 (Evans vs UK) para 54 65 ECHR 10 April 2007, 6339/05 (Evans vs UK) para 56
66 ECHR 27 August 2015, 46470/11 (Parrillo v. Italy): “The protection of the embryo’s potential for life may be
linked to the aim of protecting morals and the rights and freedoms of others, in the terms in which this concept is meant by the Government. However, this does not involve any assessment by the Court as to whether the word ‘others’ extends to human embryos.”
give starting points for the ECtHR to rule in cases about heterosexual couples. This does, in any case, include the donation of an egg cell and sometimes sperm. A biologic link is
prominent in case law concerning surrogacy because when this is present between father and child this mostly leads to a legal parent-child relationship. In heterosexual cases, the question that remains is if the parent-child relationship between the child and intended mother should be recognized as well.68 This question remains complicated because of the ‘mater semper
certa est’ principle. The lack of a legal relationship has a negative impact on aspects of a
child’s right to private life.69 It brings legal uncertainty concerning multiple aspects but
mostly regarding the child’s position in society.70 By regulating surrogacy this uncertainty
could be reduced. The child can suffer certain disadvantages as a consequence of the surrogacy. For instance the risk of abuse of surrogacy arrangements and the need to know one's origins.71
The issue of recognition of the legal relationship between parent and child (legal parental-child relationship) leads to legal uncertainty in surrogacy cases. Although the parental-parental-child relationship does not directly influence the access to reproductive technology, the reasoning does influence a State’s choice to permit or prohibit reproductive technologies including surrogacy. In the Mennesson case, France refused to register the children born and thus did not acknowledge the parental-child relationship based on the prohibition of surrogacy in France. The intended couples used the service of an American surrogate and the intended father’s sperm to fulfill their wish for a biological child. The ECtHR ruled that in case of existence of a biological link with the intended father the refusal of a parental-child
relationship would be a violation of the child’s right to private life.72 Hereafter, the ECtHR
ruled in the Paradiso case in which an Italian couple conceived a child through a surrogate abroad with no biologic link between one of the intended parent and the child. The ECtHR reasoned that there were no close family ties considering the short relations the parents and child had and mainly because there was no biological link to neither one of the intended parents.73 Thus there was no family life between the child and the intended parents. This
situation did fall within the scope of private life because of amongst other things the genuine intention of the parents.74 Nevertheless, in balancing the interests at stake the court ruled that
the illegality of the intended parents conduct overruled their wish to further develop a relationship with the child.75
Regarding the emphasis that should be given to a biological link with the intended mother, no decisive ruling was made in the Mennesson case. For that reason, an advisory report
concerning this question was requested from the court and recently published. This report firstly emphasized that in cases concerning children, the best interest of the child should always prevail.76 Secondly, the scope of the margin of appreciation is discussed. It follows
from a comparative survey on surrogacy in countries that: “despite a certain trend towards the possibility of legal recognition of the relationship between children conceived through
68 ECHR 26 June 2014, 65192/11(Mennesson vs. France); also ECHR 24 January 2017, 25358/12 (Paradiso
and Campanelli v. Italy)
69 GC Advisory Opinion 2019, P16-2018-001, p. 9 70 GC Advisory Opinion 2019, P16-2018-001, p. 9 71 GC Advisory Opinion 2019, P16-2018-001, p. 9 72 ECHR 26 June 2014, 65192/11(Mennesson vs. France)
73 ECHR 24 January 2017, 25358/12 (Paradiso and Campanelli v. Italy) 74 ECHR 24 January 2017, 25358/12 (Paradiso and Campanelli v. Italy) 75 ECHR 24 January 2017, 25358/12 (Paradiso and Campanelli v. Italy)
surrogacy abroad and the intended parents, there is no consensus in Europe on this issue”.77
In accordance with the lack of consensus, it has been seen that in cases where the individual identity and the legal parental-child relationship is at stake the ECtHR applies a more reserved approach.78 In addition, the court advises that national law should provide a
possibility of recognition of a legal parent-child relationship with the intended mother.79
2.4 Remaining questions
An overview is given of principles and rights underlying and arising from Article 8 ECHR in the light of reproductive technology. The rights acknowledged by the ECtHR in its case law are reflected in the principles of human dignity, human integrity, and personal autonomy. Personal autonomy can be found in the right to respect one’s choice to become biological parents and in the right of access to IVF treatment. Because the ECtHR has acknowledged there is a right to create a healthy embryo, it can be questioned how far science is allowed to go in the light of the future child’s human integrity. The wish for a healthy child is
acknowledged and covered by Article 8 ECHR. Lastly, the human integrity and the right to the personal identity of the child are reflected in the emphasis given to a biological link in the surrogacy cases. Overall it can be said that the best interest of the child seems to be a leading principle in the ECtHR’s case law. It should always prevail and it makes the ECtHR take a reserved position on this topic. Conflicting rulings follow from this. For example, the discrepancy between the limited access for intended parents to reproductive technology in contrast to the acknowledgement of the legal parental-child relationship. The ECtHR has ruled in the ex-post situation that weight has to be given to the legal parental-child
relationship since this is in the best interest of the child. However, the question remains how the court will react in the ex-ante situation.
The ECtHR finds it difficult to restrict the margin of appreciation of the countries regarding reproductive technology because the new emerging views did not derive from long-existing principles. However, the ECtHR did rule that this is a dynamic field of law which requires that it has to be revised continuously. The question remains if the ECtHR is revising the reproductive technology legislation enough in the light of current society? And if the ECtHR takes the stakeholders into account with respect to their rights and principles? In any case, priority is set in order to protect the best interest of the child. By focusing on views of several countries it can be concluded if there is a European consensus that the ECtHR should follow in its future adjudication.
77 GC Advisory Opinion 2019, P16-2018-001, p. 10 78 GC Advisory Opinion 2019, P16-2018-001, p. 10 79 GC Advisory Opinion 2019, P16-2018-001, p. 10
3. Rights of stakeholders and underlying principles
The current case law of the ECtHR is mainly focused on conflicts arising after the child is already born (ex-post). Furthermore, the current regulations regarding reproductive technology seem to be focused on the traditional family picture. However, modern family types are evolving and may be an incentive for an increase in litigation of access to
reproductive technology. For example, the question may arise: Should individuals or same-sex couples have access to reproductive technology, in particular, surrogacy? In the
continuation of this research, the focus will be on the legal positions of the three involved parties in this question (the child, the intended parents, and the surrogate mother). For each, it will be analysed and compared which rights and principles influence whether people have access to reproductive technology in Europe. A start will be made in order to find if there is a common thread on these issues that could give guidance to the European legislator in the future.80 To do so the regulatory framework of two countries, that are seen as relatively
tolerant regarding reproductive technology, will be analysed and compared. The Netherlands is seen as relatively tolerant, however, surrogacy is not regulated and commercial surrogacy is prohibited. The United Kingdom is interesting to compare because there is more regulation on surrogacy in this country. In order to indicate that there are countries with contrasting views on relevant topics, briefly, Spain will be discussed regarding the donation of gametes.
3.1 National legal framework
The main legal framework concerning gamete donation in The United Kingdom can be found in the Human Fertilisation and Embryology Act 2008.81 Furthermore, in the Surrogacy
Arrangement Act 1985 it can be found that it is illegal to advertise or commercialize
surrogacy.82 In addition, the Human Fertilization and Embryology Authority drafted a code of
practice, which is revised every half year. This code gives regulatory principles and guidelines for the licensed clinics to provide for safe, effective and legally compliant treatments.83
In the Netherlands, similar to The United Kingdom, there can be found provisions and guidelines concerning human fertilization. The main legislation is the Embryo Act 2002. Furthermore, crucial quality standards and guidelines are developed by the profession of gynecologists, The Dutch Association for Gynaecology and Obstetrics (NVOG) and
embryologists, The Dutch Association for Clinical Embryologists (KLEM).84 Great emphasis
is given to compliance with these standards. In the Dutch legal framework, no specific provisions are found concerning surrogacy. It is merely mentioned in the criminal law where commercial surrogacy and advertising surrogacy are prohibited (Article 151b and 151c Wetboek van Strafvordering).
3.2 The child
80 See Chapter 1
81 Revised version of The Human Fertilisation and Embryology Act 1990 82 Section 2 and 3 Surrogacy Arrangement Act 1985
83 Code of practice p. 11; See also Article 8 Human Fertilisation Act 1990 84 Bijlage 3 Planningsbesluit in-vitrofertilisatie 2016
3.2.1 The child’s best interest
The principle that the best interest of the child should be the primary consideration involves the first stakeholder: the child. The ECtHR has implemented this principle in its case law regarding Article 8 ECHR.85 Furthermore, this principle has been established in Article 3 of
the Convention of the Rights of the Child (CRC) and is seen as one of the main principles of this Convention.86
The United Kingdom’s legal framework has developed a lot over the years. An example is the 2004 regulation that removed anonymous donating which had a major impact.87 This
regulation entails that when a child turns 18 it can request identifying information about its donor.88 The principle of the best interest, or welfare of the child has been a primary
consideration in the law since the Act 1990. More specifically, the act entails the protection of “the child who may be born as a result of the treatment”. It was made clear in 1990 that the legislation surrounding this child’s welfare should be consistent, understandable and enforceable.89 Nevertheless, it is disputable what the welfare of the child entails. Article 13 of
the 1990 Act includes that “A woman shall not be provided with treatment services unless
account has been taken of the welfare of any child who may be born as result of the
treatment”. This emphasis on the welfare of the child is also found in the Code of Practice,
where it is mentioned as a crucial part of the assessment of intended parents in order to access treatment.90 The Human Fertilization and Embryology Authority has drafted a ‘welfare of the
child’ form mainly concerning health issues. Each patient applying for fertilization treatment has to fill this form, on the basis of which the Authority will determine if the child is
potentially at risk of any harm.91
The Dutch Advisory Committee has emphasized that there is not one uniform definition for the best interest of the child. The (substantive) understanding of the definition differs in each country and is dependent on the circumstances of the case.92 Various angles behind the
principle have been ascertained by the Committee. For example, the right would entail that children have the right to parents, however, a(n intended) parent would not have the right to children. Furthermore, it is emphasized that crucial elements of the best interest of the child include stability, a safe haven, continuity of relationships, respect and sensitivity. Also, it is stated that a child should know its own descent. Lastly, it is underlined that children are no trade products and emphasis has to be given to human dignity.93
3.2.2 The right to know one’s descent
The right to know your descent is well established in multiple provisions: Article 7 CRC (name, nationality, birth registration), Article 8 CRC (respect for identity) and in Article 8 ECHR (respect for private and family life). Article 7 CRC includes ‘the right to know and be cared for by one’s parents’. The definition of ‘parents’ has to be interpreted broadly and
85 Staatscommissie Herijking Ouderschap 2016 p. 25, See also: Chapter 2 86 Staatscommissie Herijking Ouderschap 2016, p. 32
87 The Human fertilization and embryology authority (Disclosure of Donor Information) Regulations 2004, See
also: E. Shepherd, Human Fertilisation and Embryology Bill (HL) p. 4
88 Code of Practice p. 201
89 Shepherd 2007, p. 12, See also: Article 13(5) Human Fertilisation and Embryology Act 1990 90 Human Fertilisation & Embryology Authority 2019, p. 93
91 Welfare of the child: patient history form
92 Staatscommissie Herijking Ouderschap 2016, p. 25 93 Staatscommissie Herijking Ouderschap 2016, p. 89
includes the child’s social and biological parents.94 Although Article 8 CRC does not give a
definition of identity, family relations are an acknowledged part. This family relationship goes further than legal parenthood and extends to biological parents.95 The right to respect for
identity and thus the right to know one’s descent are covered by the right to respect for
private and family life. However, the right to respect of private and family life is not absolute: A balance between conflicting rights always has to be struck.96
The Mennesson case exemplifies a case in which a balance had to be struck between private and public interests.97 Because the development of the child was affected, there was an
interference with the child's identity. This was found to be contrary to the child’s best interests and outbalanced the public interest.98 However, in the Paradiso case, the public
interest of protection of the national regulations outweighed the best interest of the child. In the dissenting opinions and further articles, there can be found much criticism of this reasoning.99
The right to know your descent is not reflected in all countries legislation concerning reproductive technology. The United Kingdom did acknowledge this right when the Human Fertilisation and Embryology Authority Regulations 2004 were implemented. This
development was influenced by the emphasis given to the child's right to the personal identity of which your descent is part. The interest of knowing your origins was already
acknowledged in 1989 in the Gaskin case: A child was raised mainly in foster families because his mother died at an early age. His request for information about his case-files was denied.100 The court addresses that the requested information includes important aspects of
applicants childhood, development, and history. A lack of access to this information would lead to a conflict with Article 8 ECHR.101
The significance of knowing your descent seems to be highlighted by the Code of Practice. It points out that it is in the best interest of the donor-conceived child that the child is informed about his origin at an early age. For a child and his family relations to discover this at a later age is proven to be harmful to the child.102 Another motive for the abolishment of the
anonymous donation was that not having information about your descent may negatively influence an individual’s personal identity.103 In Gaskin, a fair balance had to be struck
between the protection of the efficiency of the child-care system (public interest) and having access to information about one’s descent (private interest).104 It was concluded that the
information requested by the applicant was vital in order to understand his childhood and development. Although there is a public interest of confidentiality of public records, it was decided that considering the access requested was related to Article 8 ECHR there was a violation of this Article.105
94 Besson 2017, p. 143
95 Besson 2017, p. 143
96 Staatscommissie Herijking Ouderschap 2016, p. 37 97 See chapter 1
98 Mulligan 2018, p. 75
99 ECHR 27 August 2015, 46470/11 (Parrillo v. Italy); See also: Noot C. Mak 100 ECHR 7 July 1989, 10454/83 (Gaskin vs United Kingdom), para. 10, 11 101 ECHR 7 July 1989, 10454/83 (Gaskin vs United Kingdom,para. 36 102 Code of Practice, p. 200
103 House of Commons Science and Technology Committee 2004, p. 68 104 ECHR 7 July 1989, 10454/83 (Gaskin vs United Kingdom), para. 40 105 ECHR 7 July 1989, 10454/83 (Gaskin vs United Kingdom), para. 49
The Dutch Advisory Committee also stated that knowing your descent is from significant importance for a child.106 The existence of this right has already been acknowledged by the
Dutch Supreme Court based on Article 7 CRC in the Valkenhorst case. This case concerned a woman trying to gain information about her biological father from the institution where her mother had given birth to her. The institution that held this information rejected her request based on a confidentiality obligation against the biological mother.107 The court considered
that the right to identity includes the right to know your descent. Nevertheless, this right is not absolute: A fair balance always has to be struck. In this case, the relevant interests were the woman's right to know her parent and the right to respect to private life of the mother that included not telling her daughter about her biological father. The best interest of the child has to be the primary concern and thus dominates. This right can only be limited when the
confidentiality obligation has to be the primary consideration, which was not the case.108 The
Advisory Committee follows this judgment and indicates that the biological link is a crucial part of an individual's identity.109
A country where on the contrary anonymous donation is the only permissible way of
donating is Spain. Article 5.5 of the 2006 Act on Assisted Human Reproduction Techniques (LTRHA) determines that only non-identifying information of the donor may be disclosed. The mere exceptions are for medical reasons or for the cause of procedural criminal law.110 A
controversial aspect of the Spanish legislation is that the right to know your descent has not been acknowledged for donor-conceived individuals, however, this right is acknowledged for individuals that are adopted.111 Concerning gamete donation, it seems that great emphasis is
given to the right to privacy of the donor. Furthermore, there is a fear that the number of donors will decrease once the anonymity will be abolished.112 In cases where a child that is
conceived through IVF-treatment gets adopted this leads to a conflicting situation in which it is unclear which right should prevail. This situation occurs regularly with homosexual couples when a child is conceived through surrogacy and the fathers will adopt the child.
3.2.3 The unborn child
To which extent should the best interest of an unborn child be taken into account? In the
Evans case, it was claimed by the applicant that destroying embryos infringed their right to
life (Article 2 ECHR). The court stated that it is for countries to determine when life and thus the right to life starts. The latter results from the fact that only legal subjects can appeal to rights.113 In the Evans case, this resulted in the applicability of The United Kingdom’s law
which states that embryo’s do not have a right to life. Furthermore, the ECtHR has not included a viable embryo (fetus) in the term “everyone” within the right to life (Article 2 ECHR). As seen in Evans The United Kingdom’s court has followed this judgment in its case law. The Dutch Supreme Court, however, has given a more extensive interpretation of this definition.114 In The Netherlands, an unborn child does not have any rights, unless it is in
favor of its own interest to grant him rights. From this, it follows that in procedures concerning future descent, the best interest of the unborn child should be taken into
106 Staatscommissie Herijking Ouderschap 2016, p. 37
107 HR 15 April 1994, ECLI:NL:HR:1994:ZC1337 (Valkenhorst) 108 HR 15 April 1994, ECLI:NL:HR:1994:ZC1337 (Valkenhorst) 109 Staatscommissie Herijking Ouderschap 2016, p. 379 110 Alkorta Idiakez 2017, p. 155
111 Alkorta Idiakez 2017, p. 167 112 Alkorta Idiakez 2017
113 ECHR 10 April 2007, 6339/05 (Evans/Verenigd Koninkrijk) 114 Haaf, ten 2017, p. 1096
account.115 In order to grant a fetus rights, the Dutch court could appeal to Article 1:2 Dutch
Civil Code: “If it is in the interest of the child of whom the woman is pregnant, it will be regarded as already born.”116
3.3 The intended parents
Since a womb is missing in a homosexual relationship, these couples can only become parents either by adoption or by giving birth through a surrogate. Concerning the latter, they are dependent on a woman donating eggs. It can be found in the fertilization case law that there is a preference for conceiving a biological child.117 For homosexual couples, this is only possible through surrogacy.
In The United Kingdom, the Human Fertilization & Embryology Authority gives guidance to who is eligible to donate. The recommended age limit to be set for donating eggs is from 18 until 35 years. Before donating the woman has to be medically screened to avoid the passing on of genetic diseases and a clinic is allowed to set a minimum and maximum BMI
requirement.118 There is not an official age limit set to the donation of sperm. Nonetheless, the donor does have to be medically screened and a limit is set at 10 for the maximum number of families to be able to donate. The NHS also sets guidelines such as the
recommendation for an age limit of 43 for a woman to access IVF.119 Recently IVF treatment is also accessible for homosexual couples which paves the way for surrogacy treatment as well.120
In Dutch legislation, there are also limits set to who has access to fertilization techniques. As regards gestational surrogacy, first of all, there has to be a medical indication for the intended parents in order to be eligible for surrogacy. This entails that there has to be a
non-functioning womb like when a woman is subfertile, has a genetic disorder or previous IVF is not possible or has not been successful, she is eligible for receiving a donor egg or there is not a womb at all.121 In August 2018 the NVOG published guidelines on the Embryo Act in which for the first time homosexual couples officially were included in the targeted group.122 For a woman receiving a donor egg, the age limit is set at 45 years.123 A medical reason for this age limit is the increase in risks during the pregnancy from that age.124
3.3.1 Surrogacy contract
A legal bump in the surrogacy process is the ‘mater semper certa est’ principle applicable in The United Kingdom and the Netherlands. In the S.H. Others vs Austria, case emphasis was given to this principle. The Austrian legislator had prohibited the gamete donation based on the intention to stay as close to the natural way of conceiving a child as possible.
Furthermore, they reasoned that the ‘mater semper certa est’ principle should be maintained in order to avoid the conflicting situation in which two women, which are not a couple, could
115 Staatscommissie Herijking Ouderschap 2016, p. 395 116 Haaf, ten 2017, p. 1095, 1097
117 See e.g. Dickson vs. The United Kingdom and Evans vs. The United Kingdom 118 https://www.hfea.gov.uk/donation/donors/donating-your-eggs/
119 NHS is the public national health system in The United Kingdom 120 https://www.hfea.gov.uk/donation/donors/donating-your-sperm/ 121Modelreglement Embryowet, p. 25, 26
122Modelreglement Embryowet, p. 25, 26
123 NVOG 2016, p 26, See also: Modelreglement Embryowet 124 NVOG 2016, p 26
claim biological motherhood.125 This entails that the woman giving birth to the child is
considered to be the legal mother. In the case of surrogacy, this principle means that the intended parents have to adopt the child even if there is a biological link between them. Amongst other things, this could lead to conflicting situations between the surrogate and the intended parents when one party wants to avoid the contract or does not perform the contract. The question that arises is if enforceable obligations follow from a surrogacy contract. In the United Kingdom surrogacy contracts are in principle not enforceable. However, with the implementation of the parental order in the Human Fertilisation and Embryology Act 2008 intended parents can obtain parental control of the child.126 This option is open for
couples if they comply with the requirement that there is a biological link with (at least) one of the intended parents.127 Furthermore, in the case of surrogacy, the child has to be living
with the intended parents and the surrogate mother has to agree with the order.128 However, a
surrogacy arrangement cannot be held enforceable.
A surrogate may be paid for her service by the intended parents in the United Kingdom. Nevertheless, they can only pay for her reasonable expenses otherwise no parental order can be received and a commercial surrogacy agreement is prohibited.129 It is notable that the level
of these expenses is not limited and the amount depends on the circumstances of the case.130
It has been seen over the years that surrogate mothers are paid a higher amount than what are considered to be ‘reasonable expenses’.131 The court has stated that by the time those cases
enter into court, mostly the welfare of the child should overrule the concern about the high expenses and a parental order will be granted.132
A main principle of contract law is freedom of contract which can be infringed when a contract is considered contrary to public order and good morals: Article 3:40 Dutch Civil Code (Burgerlijk Wetboek). For this reason, a commercial surrogacy contract arguably cannot be held valid in The Netherlands.133 However, this legislation is self-contradictory,
since drafting such a contract is mandatory in order to access IVF-surrogacy.134 It follows
from this that arrangements such as giving up a child or giving compensation for the surrogate mother are not enforceable. Thus if the surrogate mother decides not to fulfill the contract there are no legal effects.135 The court decided in a case concerning compensation
for a surrogate in which intended parents decide to waive the contract that ‘taking’ the child could not be legally enforceable.136 The Baby Donna case exemplifies the uncertainty
regarding a surrogacy contract in The Netherlands. The Dutch court did agree with Baby Donna staying at her foster parents based on the fact that family life de facto existed between them.137 Nevertheless, the foster mother's request to become Donna’s legal guardian was
125 Forder, annotation S.H. Others vs. Austria
126 Staatscommissie Herijking Ouderschap 2016, p. 288 127 Human Fertilisation and Embryology Act 2008, Section 54 128 Human Fertilisation and Embryology Act 2008, Section 54 129 Human Fertilisation and Embryology Act 2008, Section 54 130 Human Fertilisation and Embryology Act 2008, Section 54 131 Horsey 2015, p. 30
132 Re X & Y (Foreign Surrogacy) 2008, EWHC 3030
133 Mak 2017, Annotation Paradiso, para. 40
134 Staatscommissie Herijking Ouderschap 2016, p. 268, 269 135 Staatscommissie Herijking Ouderschap 2016, p.269
136 Staatscommissie Herijking Ouderschap 2016, p. 270; See also Rb. Haarlem 19 december 2012, ECLI:NL:RBHAA:2012:BZ6541, r.o. 4.5
denied. The court did not make conclusions regarding the validity of the surrogacy contract. However, the reality is that Baby Donna has been living with her foster parents ever since because this was in her best interest.138
3.3.2 The right to start a family
Based on Article 12 ECHR men and women have the right to start a family. This still is considered a grey area since the court has not clarified if this requires a relationship between men and women or that men and women have this right regardless of their partner. The ECHR has not imposed provisions concerning this and has left this for countries to decide until now.
In the process of fulfilling their wish for a child, intended parents argue that they have a right to have a child. Although this right has not been explicitly recognized looking at the case law relating to Article 8 ECHR, there has been some acknowledgement of this right. First of all, in the Evans vs. The United Kingdom case the right to respect the decision to become or not to become a parent was recognized. The ECtHR seems to endorse that this right has to be explained in a negative sense: the rights’ main focus is being able to procreate without the interference of anyone. Furthermore, in the Dickson vs. The United Kingdom case the choice for parents to become a (biological) parent has been acknowledged. Moreover, the right to access reproductive technology in order to conceive a biological child was accepted. By this reasoning, the ECtHR gave the right to procreate also a positive interpretation that includes having access to the reproductive technology facilities.139 However, starting a family is still
not a right one can claim, but the State has the responsibility to ensure access to reproductive technology facilities.140
The Dutch Advisory Committee has stated that several stakeholders emphasized that
everyone has the right to start a family. The issue is that society has evolved but the law has not yet changed. For example, new family types have already emerged like multiple
parenthood and surrogacy. Fighting against these developments does not seem like an option. The question that arises is whether the state adequately protects these new family types.141
3.4 Surrogate mother
In a surrogacy case, the last stakeholder is the woman who is providing the service by ‘renting out her womb.’ Intended parents try to find a surrogate globally because of the existing difference in price.142 In Europe the most common reason is however that services
are prohibited.143 These arrangements cause the complicated situation in which individuals
from different social-economic backgrounds enter into contracts regarding the conceiving of a child.144 These social-economic differences come with the risk of exploitative situations in
which the surrogate mothers are placed. These women are vulnerable and might feel the need to earn money by these means.145 S.H. Others vs. Austria is an example case in which this
138 Rb. Utrecht October 26 2005, ECLI:NL:RBUTR:2005:AU4934 (Baby Donna) 139 Beers, van annotation ECHR S.H. and Others vs Austria p. 14
140 Staatscommissie Herijking Ouderschap 2016, p.101 141 Staatscommissie Herijking Ouderschap 2016, p. 91 142 Beers, van 2014, p. 104
143GC Advisory Opinion 10 April 2019, P16-2018-001, p. 5, 6 144 Bromfield 2014, p. 123
risk was part of the litigation. The ECtHR had to rule specifically about ovum donation. The Austrian Parliament has emphasized the increased risk of exploiting women in
social-economic different situations and the pressure that might be involved.146
Even in countries where commercial surrogacy is banned, the risks still are present. Most countries in Europe have banned commercial surrogacy because of the principle of non-commercialisation of the human body.147
3.5 Remaining questions
The best interest of the child seems to run like a thread through the issues of reproductive technology. It is interesting to see that The United Kingdom does not include a fetus into the definition of ‘Everyone’s right to life’ (Article 2 ECHR). However, this seems to be
contradictory to Article 13 of the 1990 Act that states there may only be access to fertility treatment when the best interest of the future child has been taken into account. In order to fulfill this standard, the ‘welfare form’ has to be filled in and approved in order to have access to reproductive technology. As seen in the national case law, the interest of the child seems to be overruling other interests when striking a fair balance concerning the right to know one’s descent in both countries. It is seen as a crucial part of one’s identity and thus the absence may have a negative effect on the child.
It seems like IVF for homosexuals has become more permissible in The United Kingdom and The Netherlands. When homosexuals arrange a surrogacy contract the applicability of the
‘mater semper certa est’ principle combined with the unenforceability of the contract leads to
a conflicting situation. Therefore, it should be questioned if the ‘mater semper certa est’
principle should be revised? Or a surrogacy contract made validly enforceable? Furthermore,
the question that has arisen is if the right to start a family has to be interpreted more broadly in order to adapt to the current society? Summarizing these questions: in what situations is there a need for implementation or adaptation of reproductive technology legislation?
146 ECHR 3 November 2011, 57813/00 (S.H. and Others v. Austria) para. 66
