EUROPEAN PERSONAL AND FAMILY LAW: FOREIGN SURROGACY

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This article is written by Aastha Jha of II semester of BA.LLB of alliance university.

ABSTRACT

When citizens in countries where surrogacy is illegal come overseas to have a child with the assistance of a surrogate mother, there is no guarantee that the child will be recognized as a citizen of the parents’ native country. The rejection of citizenship is an attempt to deter people from using a method of bearing children that some countries consider heinous. Lawsuits brought by dissatisfied parents have reached the European Court of Human Rights, which has ruled that it is unacceptable for a government to exploit its surrogacy ban to deprive children their human rights. The article examines European countries’ various approaches to overseas surrogacy, including the use of international conventions, domestic legislation, and case law. It covers the questions of citizenship, nationality, and residency for children born through surrogacy, as well as the difficulties of negotiating numerous legal frameworks. The essay delves into the ethical and social ramifications of overseas surrogacy, including the potential exploitation of surrogate mothers, the commodification of reproductive services, and the influence on conventional family structures, in addition to the legal complications.

Keywords – European personal law, family law, surrogacy, Human Rights, citizenship, legal

INTRODUCTION

In Europe, foreign surrogacy is becoming more popular, with many people and couples looking to start a family through surrogacy arrangements in countries other than their own. However, the legal implications of surrogacy agreements can be complicated, especially when multiple legal frameworks are involved. Surrogacy laws vary greatly across Europe, and intended parents attempting to establish parental rights and achieve legal recognition for their children may find it difficult to navigate the legal environment of various nations.

Aside from legal issues, foreign surrogacy raises ethical and social concerns, such as the potential exploitation of surrogate mothers and the impact on traditional notions of parenthood and family. These concerns have spurred a variety of reactions from European countries, including the adoption of international agreements and the creation of domestic legislation to control surrogacy.

This article will provide a thorough examination of the legal and social issues surrounding international surrogacy under European Personal and Family Law. It will investigate the varied approaches adopted by European countries to surrogacy, looking at how international conventions, domestic legislation, and case law are used to regulate surrogacy agreements. It will also look at the ethical and social aspects of surrogacy, as well as the consequences for intended parents, surrogate moms, and children born through surrogacy.

EUROPEAN PERSONAL LAW

European personal law addresses the legal and ethical aspects of international surrogacy, including questions of paternity, citizenship, and the protection of all concerned individuals’ rights and well-being. It discusses how different European countries treat surrogacy arrangements and aims to provide assistance on how to negotiate the legal challenges of international surrogacy in Europe. Furthermore, European personal law addresses ethical concerns about surrogacy, such as the potential exploitation of women in developing countries and the creation of “designer babies.” Overall, European personal law seeks to strike a balance between preserving the rights and well-being of the child, surrogate mother, and intended parents while also honouring the dignity and autonomy of all parties involved.

EUROPEAN FAMILY LAW

European family law focuses on the legal challenges regarding overseas surrogacy, particularly in the context of families and parenting. This includes issues concerning parentage, custody, adoption, and citizenship. In the case of overseas surrogacy, there may be major legal issues in determining the legal parents of the child and recognising the intended parents as legal parents in their home country. Furthermore, European family law may address ethical concerns about surrogacy, such as the potential exploitation of women in developing countries and the need to protect the best interests of the child. Overall, European family law aims to provide guidance on how to manage the complicated legal and ethical concerns surrounding overseas surrogacy, while also protecting the rights and well-being of the intended parents.

Arrangements, particularly with respect to the recognition of parent-child relationships and the legal status of children born through surrogacy. One of the key challenges in this area is that surrogacy is not regulated consistently across Europe, with some countries allowing it, others banning it outright, and still others permitting it only in limited circumstances. This has led to a patchwork of laws and regulations that can create significant legal uncertainty for parents and children involved in cross-border surrogacy arrangements. To address these issues, the European Union has developed a number of legal instruments and policy guidelines aimed at promoting greater consistency and harmonization in the regulation of surrogacy across member states. These include the European Convention on Human Rights, the Hague Convention on Private International Law, and the EU Charter of Fundamental Rights.

In practice, however, there is still significant variation in the ways that different European countries approach the issue of foreign surrogacy. As a result, individuals and families involved in surrogacy arrangements may need to seek legal advice in multiple jurisdictions in order to ensure that their parental rights are recognized and protected.

The Re Z (a kid) case (UK[1]): In 2015, the UK Supreme Court issued a decision in a case involving a couple who had agreed to surrogacy arrangements in Illinois, USA. The couple had acquired a parental order in Illinois but were seeking acknowledgment of their legal parental status in the United Kingdom. Because the surrogate mother was not domiciled in the United States at the time of the child’s birth, the Supreme Court determined that the child was not entitled to British citizenship.

In Laborie v. France[2]: In this 2013 decision, the European Court of Human Rights decided that France had breached the right to respect for private and family life of a child born in India to a surrogate mother. France had refused to recognise the boy’s French citizenship and had barred the child and his mother from communicating with one another.

LEGAL IMPLICATION

The issue of paternity is one of the most important legal ramifications of international surrogacy in Europe. In several European nations, the intended parents are legally recognised as the legal parents of the child born through surrogacy. In some countries, however, regardless of the genetic link between the kid and the intended parents, the surrogate mother and her husband are regarded the legal parents of the child. This can result in substantial legal issues, especially if the surrogate mother refuses to renounce parental rights. The problem of citizenship and immigration is another legal implication of foreign surrogacy in Europe. Surrogate children born in a foreign nation may not be recognised as citizens of the intended parents’ home country.

This can cause substantial complications for the child and their parents, such as difficulties acquiring travel documents and gaining access to important services such as healthcare and education. The Paradiso and Campanelli case (Italy): [3]In 2014, the European Court of Human Rights ruled against Italy in a case involving a same-sex couple who had arranged for surrogacy in the United States. Italy declined to recognise the couple as the legal parents of their children, citing the country’s surrogacy law. The court ruled that Italy’s refusal to recognise the couple as the legal parents of their children violated the couple’s right to respect for their family life and ordered Italy to recognise the pair as the legal parents of their children.

The legal implications of foreign surrogacy in European personal law can be complex and varied, and depend on a number of factors, including the laws of the country where the surrogacy took place, the laws of the country where the intended parents reside, and the citizenship of the child. One of the key legal issues that arises in the context of foreign surrogacy is the recognition of parent-child relationships. In some cases, the intended parents may face significant legal hurdles in establishing their legal status as parents, particularly if the country where the surrogacy took place does not recognize surrogacy or does not allow for the transfer of parental rights to non-biological parents.

Another issue that can arise is the question of citizenship and immigration status. Children born through surrogacy may face challenges in obtaining citizenship and travel documents, particularly if the country where they were born does not recognize surrogacy or if the intended parents are not married. In addition, there may be legal implications related to medical and genetic information, as well as issues related to child custody and support in the event of a separation or divorce.

Overall, the legal implications of foreign surrogacy in European personal law are complex and multifaceted, and individuals and families considering surrogacy should seek legal advice in order to understand their rights and obligations under the law.

ETHICAL IMPLICATION

Foreign surrogacy creates substantial ethical considerations as well. One of the main problems is the exploitation of women in developing nations, where surrogacy is frequently less expensive than in industrialised ones. Surrogacy agreements, critics believe, can culminate in the commodification of women’s bodies, with women paying to carry a child for another spouse. This can raise serious ethical difficulties, especially if the surrogate mother comes from a low-income family and may not fully comprehend the implications of the surrogacy agreement.

Another ethical worry is that surrogacy arrangements may result in the birth of ‘designer babies.’ This is the process of picking particular genetic characteristics for the child, such as eye colour or height. While this is currently illegal in most European countries, there are fears that it will become more common in the future, especially as genetic technology advances.

The Mennesson case (France): [4]In 2011, the European Court of Human Rights (ECHR) ruled in favour of the Mennesson family, who had entered into surrogacy agreements in the United States and sought parental recognition in France. The court ruled that France’s refusal to recognise the Mennessons as their children’s legal parents violated their right to family life

CONCLUSION

In conclusion, foreign surrogacy raises substantial legal and ethical issues in European personal and family law. The lack of consistency in surrogacy legislation across the continent can result in severe legal complications for intended parents and their offspring, including concerns of parentage and citizenship. Furthermore, the potential exploitation of women in developing countries and the creation of “designer babies” raise ethical concerns that must be addressed. More international cooperation and regulation are required to guarantee that surrogacy agreements are conducted ethically and in the best interests of all parties involved. Finally, international surrogacy regulation in European personal and family law must strike a balance between preserving the rights and well-being of the child, the surrogate mother, and the surrogate father and the intended parents while respecting the dignity and autonomy of all involved

REFERENCE

[1] Re Z (a child) (No 2) [2016] UKSC 34, Supreme Court of the United Kingdom, Judgment of 19 May 2016

[2] Laborie v. France, Application no. 65194/11, European Court of Human Rights, Judgment of 16 April 2013

[3] Paradiso and Campanelli v. Italy, Application no. 25358/12, European Court of Human Rights, Judgment of 27 January 2015.

[4] Mennesson v. France, Application no. 65192/11, European Court of Human Rights, Judgment of 26 June 2014.

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