PACE: The Rapporteur on surrogacy has a not-so-secret agenda

While ordinary citizens are unlikely to have any interest in the legalization of surrogacy, there are two groups that are keenly pushing for this: one is the reproduction industry, which has turned surrogacy into a multi-billion business, and the other is the “LGBT lobby” who has come round to understand that, despite their recent successes in re-defining “marriage” and “family” as legal terms, they will never be able to change the laws of nature to make “same-sex parenthood” possible. To them, surrogacy is of pivotal importance for gay couples to create “families”.

It was thus from the outset a very questionable choice for the Council of Europe’s Parliamentary Assembly (PACE) to nominate as a Rapporteur for a planned report on Human rights and ethical issues related to surrogacy the Belgian politician Petra De Sutter, who unites in one person the qualities of a reproductive doctor – indeed one who, using a loophole in his country’s legislation, is actually offering surrogacy arrangements to his clientèle – and of a leading representative of the LGBT lobby. This is what in a previous post we have described as putting the fox in charge of the hen-house: apparently the PACE wants the laws on surrogacy to be made by those having a direct stake in it, not by those who, lacking such self-interest, might be able to look at the matter more objectively.

Mr? De Sutter’s draft for a preliminary report is now out, and what he has written is apt to confirm the worst fears of those who were critical of his appointment as Rapporteur on this matter.

You may download the full document by clicking on this link, but it is sufficient to look at the key passages, which are found in paragraphs 6 and 7 of his paper, which run as follows:

6. Since there is obviously no consensus on how to regulate surrogacy nationally, how best to ensure that at least the human rights of children and surrogate mothers are de facto protected when it comes to the increasingly common international surrogacy arrangements? Policy-makers and lawyers have grappled with the question of whether regulation and prohibition are mutually exclusive alternatives, but, at a recent conference,[1] there was wide agreement that it is important to:

– Eliminate practices that pose unnecessary medical risks to surrogates and children;

– Eliminate restrictions on the personal autonomy of surrogates;

– Establish and maintain records to give participants in surrogacy arrangements the option of acquiring information on their origins and/or future contact should the mutual desire or need for it arise;

– Carry out a basic screening of commissioning parents to reduce risks of abandonment or abuse of children born via surrogacy;

– Provide evidence-based information about known and potential risks, living conditions and outcomes for surrogate mothers, gamete providers and commissioning parents;

– Heighten regulation and oversight of intermediaries.[2]

  1. The question remains open whether these recommendations should take the form of “soft” or “hard” law. The Hague Conference on Private International Law (HCCH) has been working on the feasibility of drawing up a multilateral instrument in the field of parentage / surrogacy for several years now.[3] It is currently forming an Expert Group, which is to meet for the first time in the first half of 2016, and is exploring the option of drafting a binding International Convention on the subject on the model of the Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of Intercountry Adoption. A second question is whether there should be complementary action of the “soft” or “hard”-law kind at the Council of Europe level.

[1] International Forum on Intercountry Adoption and Global Surrogacy, Thematic Area 5, Global Surrogacy Practices, held in August 2014, the proceedings of which were summarised in the Working Paper No. 601 of the International Institute of Social Studies at the Erasmus University Rotterdam (the Netherlands).

[2] List taken from working paper no. 601, page 37.

[3] The HCCH has undertaken a number of highly informative studies, available at: http://www.hcch.net/index_en.php?act=text.display&tid=178.

In order to understand the true sense of these lines, it is important to take note not only of what they contain, but also of what they do not contain.

Mr? De Sutter’s primordial objective is to prevent the discussion from going into a direction where he does not want it to go. Rather than providing structure and substantial input for the debate that is urgently needed, his draft serves the apparent intention of foreclosing it.

By suggesting that “there is no consensus on how to regulate surrogacy” and that therefore the PACE should limit itself to identifying ways “to ensure that at least the human rights of children and surrogate mothers are de facto protected when it comes to the increasingly common international surrogacy arrangements”,  Mr? De Sutter is actually proposing that all CoE should adopt laws that implicitly accept that surrogacy is in principle an admissible way for people to ‘found a family’. For indeed, it is not possible to adopt laws providing for “the establishment and maintenance of records” on surrogacy agreements, or for “a basic screening of commissioning parents”, or for anything else in the Rapporteur’s list of proposals, without in the first place accepting surrogacy tourism as a legal activity. A country maintaining a categorical ban on surrogacy cannot at the same time provide for a screening of commissioning parents.

So the first and foremost question actually is whether it is at all possible to protect the human rights of the women and children concerned while at the same time accepting surrogacy – or whether there is a need for an international treaty to outlaw this truly abominable practice, which abuses and commercialises the female body, and deprives children of the right to know, and have contact to, their (biological) parents.

It is by far not only “reactionaries” or “religious believers” who are critical of surrogacy. As we reported just the other day, even radically “progressive” groups such as the European Women’s Lobby (EWL) are loudly calling for an international treaty to ban the practice, which they view – with good reasons – as a new form of slavery and child trafficking. But Mr? De Sutter, under whose personal responsibility the Universitair Ziekenhuis of Ghent offers assistance to gay couples using surrogacy, is obviously not in favour of such a possibility being discussed…

If there is no general agreement on a ban on surrogacy, then the next question is how countries prohibiting this practice can co-exist with countries allowing it. This would require the anti-surrogacy countries to adopt and enforce measures to curb “surrogacy tourism” into pro-surrogacy countries.

The recent case-law of the ECtHR is certainly not very helpful in this context – but even the ECtHR has explicitly recognized that laws prohibiting surrogacy serve a legitimate purpose.

But what in fact Mr? De Sutter is demanding is that all 47 CoE Member States should accept surrogacy. And what is is one and only argument for this? That “there is no consensus” on a ban.

But obviously, there is no consensus on a legalization either. So, why is Mr? De Sutter pre-supposing that any report, in order to find “consensus”, must take the acceptance of surrogacy as a starting point???

Mr? De Sutter’s suggestion that the only question that remains open is whether his recommendations “should take the form of “soft” or “hard” law” is an enormity. Where do those recommendations emanate from? Mr? De Sutter refers readers of the preliminary report to “a recent conference” that was held in Rotterdam – but in actual fact the Working Paper that summarizes the outcome of that conference is much more differentiated. In any case, one fails to understand how the agreement, wide or not, on an academic Conference should in any way pre-determinate the CoE Member States’ decision to accept or prohibit surrogacy.

No, there are many other questions that remain open. The PACE should therefore reject Mr? De Sutter’s preliminary report. 

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