“What this proposal anticipates is drafting a ‘detailed’ agreement that specifies the rights and obligations of each party. When we start to delve into the rights and obligations of the surrogate mother, they are quite burdensome, as the agreement would notably stipulate that the pregnant woman does not have the right to take any medication without a medical prescription. Furthermore, if she does not comply with any of the points of the agreement, she must not only surrender the child but also bear all the expenses related to the pregnancy. This means that if she has a headache, she must make an appointment with a doctor to obtain a simple medication; otherwise, potentially, she must pay all the expenses, and the intended parents still have the right to keep the child in the end.” – Myriam Ben Jattou, (Lawyer and President of Women of Law ASBL), on the bill aiming to regulate surrogacy in Belgium
Full access to Myriam’s intervention in our seminar “Critique of Surrogacy from a Legal Perspective” (1)
Surrogacy in Belgium, one of the most liberal countries:
The Belgian legislation, implemented in 2007, is not very restrictive, delegating the decision and implementation of reproductive techniques to the scrutiny of the country’s medical community in various procreation centers, which, as we know, view surrogacy as purely a medical issue without taking into account or even having sufficient expertise to address surrogacy as it truly is: a social practice. Therefore, in Belgium, access to reproductive techniques is broad due to the absence of restrictive criteria established by law for their use, whether for Assisted Reproductive Technology (ART) or surrogacy, which, as emphasized, is currently not regulated. This means that reproduction centers have the autonomy to define their own access criteria.
“We don’t care, legal or not, we’re doing it.”
(discourse contained in the romanticized video about carrying out surrogacy at Saint-Pierre Hospital in Brussels according to their own criteria)
This makes Belgium an actor on the European stage in terms of surrogacy, which is still underdeveloped because the 5 hospitals that practice it adhere to restrictive approaches: intrafamilial surrogacy, proven female infertility. Gamete donation is voluntary and unpaid, and can remain anonymous. To our knowledge, there is no data on surrogacy performed, neither in the 4 other clinics nor abroad for Belgian sponsors. Pending possible legislative intervention, the courts act through various legal subterfuges to “resolve” problems arising from completed surrogacy related to establishing filiation, adoption, and recognition of foreign judicial acts or decisions.
A study published by the journal PÉRINATALITÉ (2) in 2022 presents the surrogacy arrangements supported by Saint Pierre Hospital in Brussels:
It is a hospital known for conducting surrogacy in Belgium, and it presents itself as such. From 1997 to 2020, the hospital received at least 231 surrogacy requests, of which at least 77 were accepted. Only 50 requests were refused due to “psychosocial risks for the surrogate mother”. The French account for at least 50% of surrogacy applicants in Belgium, which reinforces the country’s role in cross-border surrogacy, currently limited to neighboring countries. All babies produced and born at the hospital are directly cared for by the sponsors regardless of the outcome of the judicial procedures that decide each case’s parenthood.
Saint-Pierre Hospital does not have fixed criteria for conducting surrogacy; each case is deliberated individually. Although it is a hospital entity, they themselves qualify the surrogacy carried out by the surrogate mother as “shared pregnancy.” Since 2015, according to their own understanding, the hospital team has begun to conduct procedures including egg donation to meet the demands of male couples at the hospital.
The Legal and Procedural Aspects of Surrogacy in Belgium
In 2015, the Belgian Parliament, due to the disparity of practices, requested the development of an informative report on the possibilities of defining a legal framework for surrogacy. As a result, the Belgian Senate produced a synthesis report in which each Belgian political party represented in the assembly expressed its viewpoint on the need for legislation concerning surrogacy, including defining the conditions of access to it.
REGARDING FILIATION:
In Belgium, the common law of biological filiation prevails, which means that if surrogacy takes place in the country and the birthing woman is Belgian, she will be considered the mother of the child according to the prevailing legislation, thus automatically creating the legal filiation link with the woman mentioned in the birth certificate. However, currently, there is no law governing surrogacy in Belgium, both in terms of access and in establishing the filiation link with the intended parents. Therefore, the surrogate mother, whether she provided her eggs or not, is designated as the legal mother of the child, and any “intended father” can acknowledge the child with the surrogate mother’s consent. The “female partner of the intended couple” (or both “intended parents” if the intended father does not acknowledge the child) can adopt the child with the surrogate mother’s consent. For same-sex couples, the second “intended father” can also adopt the child. This shows us that adoption is one of the main ways to gain access to children born through surrogacy in Belgium, with the argument invoked being that of the “best interest of the child.” To nullify the surrogate mother’s right of withdrawal, during discussions in the Senate in 2015, a reform of Belgian law was proposed to allow for the automatic establishment of filiation between the intended parents and the child, without the surrogate mother being considered the child’s legal mother.
ACCESS:
Regarding access, legislative opinions are divergent, although the majority seems to believe in the requirement that at least one of the “intended parents” must provide their genetic material and that the surrogate mother has no genetic link to the child. While most parties advocating for legislative regulation are willing to allow access to singles and all types of couples (same-sex or opposite-sex), some wish to limit access to surrogacy to only Belgian citizens or residents in Belgian territory for a certain period (for example, two years); some also consider imposing residency requirements in Belgium for the surrogate mother. The residency requirement is found in legislation such as that of Argentina, which stipulates 5 years of residency in the country to avoid making it a hub for the surrogacy market as is currently the case in Colombia.
Although dating back over 8 years, the report attests to an ongoing debate about the possibility of regulating access to surrogacy in Belgium (3).
The only restrictions on access to Assisted Reproduction Techniques (ART) concern the age of the woman: Belgian residents are covered up to 42 years old, with a maximum of six reimbursed cycles. Additionally, the procedure must be performed in women under 45 years old for egg collection and up to 47 years old for embryo transfer. There are no age restrictions for men involved in the reproduction process or for sperm donors, and lawmakers do not see as problematic the possibility of performing insemination or embryo transfer after the death of one of the parents(!), provided that this was agreed upon beforehand and within a specific timeframe after the death.
OPINION NO. 86:
On April 17, 2023, the Belgian Bioethics Committee published Opinion No. 86 concerning the legal regulation of surrogacy, thus updating Opinion No. 30 from July 5, 2004. This publication was requested by the Minister of Social Affairs and Public Health, Frank Vandenbroucke, to review the policy regarding surrogacy. Will Belgium move towards regulated surrogacy? In essence, in Opinion No. 86, the Committee considers surrogacy to be ethically acceptable and strongly recommends that it be regulated by adoption legislation. Their intention is to facilitate the process for intended parents by guaranteeing them exclusive parental rights from the birth of the child through a prior agreement between the intended parents and the surrogate mother.
Sign here the CIAMS petition against Opinion No. 86.
Read here the CIAMS argumentative report against the Opinion.
Conclusion:
It can be said that access to surrogacy is broader in Belgium than in other countries, in part because the law does not define restrictive criteria for access and implementation of ART techniques, and because it does not effectively prohibit the practice. This results in leaving medical centers total freedom to define their own access criteria. In a legal and social framework tending towards permissiveness, whether through concrete actions or by omission, courts resort to legal detours to establish filiation links of the child with the intended parents, creating a context of uncertainty where the argument for regulation, which predicts an openness to the market, finds a place rather than what should actually be implemented, namely prohibition in all cases.