CONDEMATION OF SURROGATE MOTHERHOOD BY THE LITHUANIAN AND FRENCH PARLIAMENTS

By: ECLJ/Claire de La Hougue
Photo: Le Figaro

The Lithuanian Parliament has taken up in extenso the legal analysis and proposals that the ECLJ had written as early as 2016. Claire de La Hougue explains below in an op-ed published in the FigaroVox the text adopted by the Parliament and why this is good news that could and should inspire parliamentarians in Europe.

Moreover, the fact-finding mission on the adaptation of French family policy to the challenges of 21st century society has submitted a report to the National Assembly (No. 3168), which also cites the ECLJ study.

The French National Assembly has extended its session precisely to examine the new bioethics bill. In addition to the Assisted Reproductive Technology (ART) issue we’ve already talked about, the bill contains a number of worrisome provisions that, inter alia, pave the way to surrogacy and further promote research on the human embryo. To know and understand the implications of this law, we published, in French only, a video interview with Mariette Guerrien, from the Jérôme Lejeune Foundation that you can watch on YouTube or Facebook.

While some people in France would like to take advantage of the revision of bioethics laws to make surrogate motherhood acceptable and while French courts are increasingly accepting the fait accompli when it is practised abroad, Lithuania is rebelling against surrogacy, declaring it radically contrary to the dignity of women and children.

The Lithuanian Parliament, known as the Seimas, adopted on 25 June 2020 by an overwhelming majority of voters (54 to 4, with 3 abstentions) a “Resolution condemning all forms of surrogate motherhood”. Drafted by Christian-Democrat MPs, the text was supported by members of other parties, notably the Green and Social Democrats.

The resolution first of all noted that this practice is contrary to numerous international treaties: those prohibiting the sale of children, trafficking and slavery, those guaranteeing women’s rights in particular against the exploitation of their reproductive organs, those protecting children’s rights or ruling filiation, adoption or even biomedicine. It also recalled a number of European Parliament resolutions and international reports that highlight the violation of the dignity of the women and children concerned, who are treated as commodities, and the high risks of trafficking in persons associated with this practice. Finally, the Lithuanian Parliament calls for a ban on surrogacy, also basing it on Lithuanian law.

The Parliament stressed the difference between adoption, which is practised in the interests of the child and was intended to remedy an existing painful situation, and surrogacy, which focused on the desire of adults to “have” a child conceived for that purpose, and involved the deliberate termination of a family relationship. It noted that the dissociation of motherhood between its genetic, biological and social dimensions and the multiplication of claims on the child that it allows lead to disorder and legal insecurity.

The Seimas further observed that all attempts to regulate surrogate motherhood have only encouraged reproductive tourism and the exploitation of women in poor countries. The Seimas stressed that this practice – whether openly commercial or allegedly altruistic – is a modern form of slavery and trafficking in persons and cannot be justified either legally or ethically.

The Parliament concluded that only the complete and definitive condemnation of all forms of surrogate motherhood can eliminate this practice, which violates human rights and dignity. It therefore called on the President of the Republic, the Government, and the Foreign Minister to condemn all forms of surrogate motherhood. It further called on them to take effective measures at the European level, the Council of Europe and the European Union, to ensure that this practice be prohibited as a form of trafficking in women and children, and that States be free to refuse to recognise false filiations established abroad on the basis of surrogacy. The Seimas also called for heavy fines to be imposed on those involved in international surrogacy contracts, including medical and legal agencies and intermediaries.

At the international level, the Lithuanian Parliament is making very concrete proposals. It advocates submitting two amendments to existing treaties to the UN Secretary-General. The first one, in the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography would expressly recognise surrogate motherhood as a case of sale of children. The second would incorporate into the Convention on the Elimination of All Forms of Discrimination against Women the obligation to take all measures to prohibit this practice. Finally, the Lithuanian MPs call on the Council of Europe to launch an investigation regarding the violation by Member States of their commitments under the European Convention on the Legal Status of Children Born out of Wedlock.

In drafting this resolution, Lithuanian MEPs relied on a study by the ECLJ entitled “What international legal remedies to prohibit surrogacy?” which was first published in the book Le mariage et la loi, protéger l’enfant, edited by the Institut Famille et République (Paris 2016).

This is the first time that a European national parliament has become so aware of the seriousness of the violations by surrogacy not only of international law but even more so of the rights and dignity of women and children and that it has proposed concrete measures to ban this practice.

Unlike the Hague Conference, which is trying to gain acceptance of surrogacy by claiming to regulate it, the Seimas has understood that there is no difference in nature according to the methods adopted and that regulation only aggravates the problem in poor countries.

The time has come for international action to prohibit surrogate motherhood. Indeed, for several years now, many child-bearing countries have taken severe measures to prohibit or at least limit this practice. Various international bodies have already warned of violations of their inherent rights. The United Nations Special Rapporteur on the sale and sexual exploitation of children, Ms. de Boer-Buquicchio, has devoted her 2018 report to the sale of children in the context of surrogacy. The European Parliament had raised the issue as early as 2011 and had condemned several times since then, this practice consisting in the exploitation of women’s bodies and reproductive organs. For its part, the Parliamentary Assembly of the Council of Europe, despite intense lobbying and after long debates, rejected in 2016 a draft report and recommendation that would have had the effect of admitting surrogacy.

The concerns of Lithuanian MPs also converge with those of their counterparts in other European countries. For example, following the scandal of the “surrogacy babies” blocked in Ukraine [during the Covid crisis], Swedish MP Alexander Christiansson submitted to the Committee of Ministers of the Council of Europe at the end of June a written question, previously mentionned, based on the European Convention on the Legal Status of Children Born out of Wedlock, which provides that “Maternal affiliation of every child born out of wedlock shall be based solely on the fact of the birth of the child”, as in the case of the children of a married woman. Yet Ukraine registers the sponsor woman as the mother on the birth certificate, in violation of European law.

Just recently, on 1 July 2020, the information mission sur l’adaptation de la politique familiale française aux défis de la société du XXIe siècle presented a report (No. 3168) to the National Assembly. The MPs called for international action to ensure that countries which allow surrogate motherhood do not grant the benefit of this method of procreation to nationals of countries which prohibit it, as envisaged by Manuel Valls, then Prime Minister, and then for a general ban on this practice, first through bilateral agreements and then in the form of an amendment to an existing convention, referring to the proposals of the ECLJ study. They point to the existence of a certain consensus at the European level since a large number of France’s neighbouring states – Germany, Spain and Italy – prohibit surrogacy.

At a time when, despite undeniable international awareness, many governments remain undecided in view of the strong pressures and the extremely lucrative nature of this market, the expression of strong political will can be decisive in abolishing surrogacy. Let us hope that the movement thus initiated will lead other European countries and lead to the eradication of this practice, just like slavery.