Call to consider the issue of surrogacy from the women’s rights, and the rights of the child perspective.
Letter sent from ICASM to European Commissioner Ursula von der Leyen on 18/07/2022.
The response, which is not very rcomforting, from the Directorate General for Justice and Consumers of the European Commission is available and commented at the end of the document.
International Coalition for the Abolition of Surrogate Motherhood
To the attention of Mrs. President of European Commission, Ursula von der Leyen,
Under cover of Mr. Bjoern Seibert, Chef de cabinet
Paris, 13 July 2022
Dear Mrs. President,
We hope this email finds you well. As an international feminist organisation, we welcome the progress that the EU has made and is making on gender equality. Despite this, no EU member state has fully achieved gender equality in any area (economic, political, educational, health, or in the fight against gender-based violence).
Furthermore, we are concerned about certain authoritarian, coercive and misogynist movements that are emerging in some countries, threatening these advances, as well as broader European values related to human rights, democracy, and the rule of law. In particular, the international approach being taken to surrogacy enables the international market through surrogacy. In Ukraine, more than 2,000 children are born through surrogacy every year, and today, Ukraine is a potential candidate state for EU membership.
Our organisation, ICASM, “International Coalition for the Abolition of Surrogacy”, represents more than 41 organisations defending women’s rights, located in 14 countries. Our gaol to contribute to the adoption of legislation and public policies aimed at the abolition of surrogacy. It is based on feminist values such as equality between women and men, women’s emancipation, and autonomy.
It is of utmost importance that human rights are respected throughout the European Union. This includes surrogacy. The European Parliament has already condemned surrogacy, and countries such as Spain have declared surrogacy a form of reproductive violence. Surrogacy in all its forms is banned and condemned to ensure the protection of women and children who are subjected to this practice, as well as the independence and autonomy of women, and the respect of human rights.
Surrogacy is unacceptable from the point of view of fundamental European values, in particular the rights to dignity and integrity which are inalienable and non-transferable. Surrogacy organises the disposal of human beings, firstly the surrogate mother who renounces all her human rights by contract for the entire duration of the process, and secondly the child who is disposed of, for the benefit of the commissioning couple, even before conception. Consent, even if formalised by contract, cannot legitimise this practice, and has no place in practices that are contrary to human dignity. Furthermore, it cannot be in the interest of the child to be born, through a risky process, in the womb of a woman other than the one who will raise him or her, to satisfy the desire for a child of a third party.
We therefore ask you to reconsider the directive on the recognition of parenthood and to approach the issue from a feminist perspective by specifically excluding the issue of surrogacy from this directive. It is obvious that any normative instrument that would organise filiation in the context of surrogacy would amount to a universal legitimisation of the practice. For the same reason, we also urge you to disapprove the Hague Conference work on “Parentage in the context of surrogacy”, as it will fuel transborder surrogacy: a system of reproductive exploitation of women.
We encourage you to consider surrogacy as a form of violence against women, as it involves sexual, physical, psychological, and economic violence. And so, include gender-based violence as a new criminal offence in Article 83(1) TFEU, using the existing legal bases set out in Articles 82(2) and 83(1) TFEU.
We call on you to relate surrogacy to trafficking and follow the anti-trafficking strategy. Focusing on the elimination of demand, the prosecution of intermediaries, clinics (which operate on the basic economic principle of high demand motivating their activities), and marketing. Surrogacy has become a global market in which women are trafficked for the purpose of reproductive exploitation. The growing demand encourages all forms of exploitation of vulnerable women, especially in high-risk areas and environments.
The exploitation of women, in any of its forms, cannot be an exception to international public order, nor to respect for human rights and the most essential values of the European Union. We thank you for your consideration, and we remain at your entire disposal for any further information on the subject.
Marie Josèphe Devillers Ana-Luana Stoicea-Deram Berta O. Garcia
Co-chairs of the Internationale Coalition for the Abolition of Surrogate Motherhood
 Gender Equality Index EIGE 2021 – https://eige.europa.eu/gender-equality-index/2021
 European Parliament resolution of 13 February 2019 on the experience of backsliding on women’s rights and gender equality in the EU. (2018/2684(RSP))
 The parentage/surrogacy project https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy
 Draft Organic Law amending Organic Law 2/2010, of 3 March, on Sexual and Reproductive Health and Voluntary Termination of Pregnancy “… as a State, we must reaffirm our commitment to respond to serious violations of reproductive rights that constitute manifestations of violence against women, such as surrogate motherhood” (p. 4). https://www.igualdad.gob.es/servicios/participacion/audienciapublica/Paginas/anteproyecto-lo-salud-sexual-reproductiva-interrup.aspx
The European Commission replies that the future proposal for a directive on the recognition of parenthood “will not affect the competence of Member States to establish parentage, including in the context of surrogacy. Furthermore, in accordance with all existing EU instruments on family law, the recognition of parentage established in a third country will not be covered by the Commission proposal but will remain subject to the national law of the Member States”.
This answer is not a convincing one. We believe that the Commission is relying on the work of the Hague Conference to cover this issue, which will therefore be dealt with in favour of the surrogacy market, to the detriment of women’s and children’s rights.