As part of the revision of Directive 2011/36/EU on preventing and combating trafficking in human beings at European level, we are calling for surrogacy to be included and recognised as a form of exploitation (sexual and reproductive) to be taken into account in trafficking in human beings.
This change would make it possible to recognise surrogacy as a deviant practice across Europe.
The revision of this directive aims to adopt measures on the recognition of forms of exploitation, on the development of new technologies, on the use of forms of exploitation, i.e. acting on demand, and finally on the lack of data. On all these points, surrogacy could be included and recognised as a form of trafficking.
PROPOSAL OF AMENDMENT TO INCLUDE SURROGACY
AS A FORM OF TRAFFICKING IN HUMAN BEIGNS
The proposal of the European Parliament and of the Council to amend Directive 2011/36/EU on preventing and combating trafficking in human beings, and protecting victims, must – as a matter of urgency – include the practice of surrogate motherhood by recognising it as an offence of trafficking in human beings punishable by all EU Member States. (see amendment proposal at the end of this document)
We believe that article 2, (mentioned below) of the initial Directive 2011/36/EU of the European Parliament and of the Council, 05/04/2011 on preventing and combating trafficking in human beings, and protecting victims, perfectly characterise situations of surrogacy and reproductive exploitation as a practice that falls within the scope of human trafficking and smuggling.
Offences related to trafficking in human beings
- Member States shall take the necessary measures to ensure that the following intentional conduct is punishable : The recruitment, transportation, transfer, harbouring or receipt of persons, including the exchange or transfer of control over them, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
- A situation of vulnerability means that the person concerned has no real or acceptable choice but to submit to such abuse.
« Considering that gender inequality, poverty, forced displacement, unemployment, lack of socio-economic opportunities, lack of access to education, gender-based violence, discrimination and marginalisation as well as corruption are some of the factors that contribute to making people, especially women and children, vulnerable to trafficking; that the root causes of trafficking in human beings are still neglected » (European Parliament Report on the implementation of Directive 2011/36/EU).
To support our argument, we are pleased with the position of Siobhán Mullally, the UN Special Rapporteur on Trafficking in Persons, who visited Colombia and recognised surrogacy as a form of trafficking and sexual exploitation of women and girls, especially those in the most vulnerable situations (racialised, migrant, poor…).
Definition: Surrogacy is defined as the practice of recruiting a woman, with or without payment, to carry one or more children, whether or not conceived with her own ova, with the aim of giving them to one or more persons who wish to be designated as the parents of these children.
Surrogacy is a form of exploitation for reproductive purposes.
In order to improve the capacity of Member States to combat trafficking more effectively, it is necessary to harmonise the European legal landscape and strengthen cross-border cooperation, as highlighted in this report.
However, not recognising surrogacy as a form of reproductive exploitation means ignoring some of the trafficking that takes place even within the EU and therefore contributes to a lax, incomplete, and biased approach to the issue of trafficking.
Trafficking as a gender-based crime is well documented, as more than 3/4 of victims in the EU are women and girls, and sexual exploitation is the most common form of trafficking. The report on the implementation of the Directive states that « societal tolerance of gender inequality and violence against women and girls perpetuates a permissive environment for trafficking for sexual exploitation ». The failure to recognise surrogacy as a practice of sexual and/or reproductive exploitation directed exclusively at women contributes to this permissive environment deplored in the report..
Important changes have been sought in this Directive, in particular the recognition of forced marriage and illegal adoption as forms of exploitation in Article 2(3) of the Directive. This is an improvement in the list of forms of exploitation, but it is necessary to include surrogacy in this list, as this practice contributes to the globalisation and acceptance of a functional process in which women’s bodies are perceived as a use and commercial value in the reproductive market. To contribute to the expansion of the practice of surrogacy by regulating it would be to trivialise a market based on the exploitation of women in the name of sexist and misogynist stereotypes.
Development of digital technologies, social media and internet services as tools for trafficking
Although there is no universal definition of human trafficking, there are a number of texts that attempt to remedy the situation. These include the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the 2000 United Nations Convention against Transnational Organised Crime, which served as the basis for the definition used by the EU in its 2011 anti-trafficking directive. To be considered a criminal activity, trafficking must meet 3 different criteria:
The activity : which consists of recruiting, transporting, harbouring or receiving people ;
The means : including the threat or use of force, deception, coercion, abuse of power or of a position of vulnerability ;
The purpose : to exploit the victims of trafficking.
Addressing the « means » of trafficking is one of the ways in which we can categorise surrogacy as trafficking, as the relative « consent » of surrogates to engage in this practice is based on deception :
- Ignorance of the high level of risks : specifically associated with this practice (pre-eclampsia, gestational diabetes, loss of the uterus, loss of potential fertility through the use of caesarean sections requested by the sponsors or imposed by the agencies, death…).
- The misrepresentation of this practice : as progressive, exemplary, harmless (etc.) by the market and its forces: lobbies, sponsors, agencies, lawyers, etc… on the basis of stereotypes.
The social and economic vulnerability of women called upon to engage in this practice as surrogate mothers has been amply demonstrated.
As the “Proposal for a Directive of the European Parliament and of the council, amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims” underlines, the development of online technologies is a sought-after field for those responsible for trafficking in Europe. In this respect, « intentional acts and certain means (coercion, fraud, deception, abuse of power) and exploitation (in particular sexual exploitation) must include acts committed by means of information and communication technologies ».
Globalisation has facilitated the phenomenon of trafficking in human beings through increased mobility and the development of new technologies. The use of online technologies (internet, social media, platforms…) justifies action at European level, as these new technologies enable traffickers to recruit, control, transport and exploit victims, as well as to transfer profits and reach « users » on a global scale without crossing borders. In the case of surrogacy, the development of new technologies de facto contributes to the illegal development of this practice.
Online surrogacy brokers and agencies are a rapidly growing phenomenon, allowing traffickers to exploit women with impunity. Not to mention the contact between traffickers and prospective surrogates facilitated by social networks.
Use of exploitative services
Targeting the « use of exploitative services with the knowledge that the person is a victim of trafficking » is a category of actions that can reduce trafficking. In this sense, targeting the demand for exploitative services is equivalent to targeting potential clients.
In surrogacy, clients (also known as « intended parents or commissioning parents») are the main cause of the development of the practice.
The example of prostitution : surrogacy and prostitution are two practices that are comparable in many ways, although in this Proposal prostitution is recognised as exploitation and surrogacy is not
On the “Report on the implementation of Directive 2011/36/EU (a21) on preventing and combating trafficking in human beings and protecting its victims” ., the EP mentioned Europol’s conclusion stating that « in Member States where prostitution is legal, (this) makes it easier for traffickers to use a legal environment to exploit their victims », as is the case today with surrogacy in countries that either legalise the practice or do not.
Europol also stresses that « trafficking is fuelled by high profits for traffickers and by demand, which encourages all forms of exploitation ». It is therefore necessary to respond to customer demand. Like prostitution, which is fuelled by states that have regulated rather than abolished the practice, surrogacy thrives in countries where lax regulation contributes to trafficking, with ever increasing profits and demand from clients. However, the supply of surrogate mothers is much lower.
Greece is a good example: Greece chose to regulate surrogacy in 2005, with a specific clause prohibiting foreign women from acting as surrogates. However, in 2007, the legislature reversed and then abolished this clause, as the supply of Greek surrogates was insufficient to meet client demand. This led to the trafficking of foreign women to Greece.
It is necessary to condemn « not only the traffickers, but also (…) those who profit from the crime and exploit the victims », i.e. the applicants. In countries where surrogacy is illegal (the majority in Europe), only providers (agencies and brokers) are punished for offering surrogacy services. However, if a citizen in a country prohibiting surrogacy decide to go to a neighboring country – where the practice is legal – to have a baby through surrogacy, their return contributes to reproductive tourism and child smuggling without any sanction.
A significant lack of data
As highlighted in the above-mentioned Report « the lack of consistent, comparable and comprehensive data continues to hamper an adequate and evidence-based assessment of the extent and trends of trafficking; calls on Member States to step up their efforts and to fund research, analysis and data collection on all forms of trafficking ».
In order to ensure that surrogacy is categorised as a trafficking and smuggling practice, it is necessary to obtain more data. The lack of research, figures and statistics on surrogacy is regrettable in the struggle to have this practice recognised as a form of violence that falls within the scope of trafficking.
PROPOSAL FOR AN AMENDMENT
Proposal for a Directive
Article 2 – paragraph 3
Text proposed by the Commission (Bold inserted in Article 2a)
- Exploitation shall include at least the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, the exploitation of criminal activities or the removal of organs or forced marriage, or illegal adoption”
- Exploitation shall include, as a minimum, the exploitation of the prostitution of others and surrogate motherhood or other forms of sexual and reproductive exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, the exploitation of criminal activities or the removal of organs or the removal of organs or forced marriage, or illegal adoption”
International Coalition for the Abolition of Surrogate Motherhood – -Feminist and human rights organization
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 Directive 2011/36/EU of the European Parliament and of the Council, 05/04/2011 on preventing and combating trafficking in human beings, and protecting victims, URL : https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:FR:PDF#:~:text=3.,comme%20une%20circons%20tance%20aggravante.
 Extract from the Report on the implementation of Directive 2011/36/EU on preventing and combating trafficking in human beings, and protecting victims, 01/02/2021, URL : https://www.europarl.europa.eu/doceo/document/A-9-2021-0011_FR.html
 Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. Its aim is to prevent and combat trafficking in persons, with particular emphasis on women and children. To protect and assist the victims of such trafficking, with full respect for their human rights; and. Promote cooperation between States Parties to achieve the objectives of the Convention. https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons
 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA http://data.europa.eu/eli/dir/2011/36/oj