Balancing Human Rights and Legal Norms

Introduction

The UK laws permit surrogacy. The main legislation concerning surrogacy is the Surrogacy Arrangements Act 1985 that concerns making of application for parental orders. It makes surrogacy contracts unenforceable, and the Human Fertilisation and Embryology Act of 2008 that recognises the surrogate as the child's legal mother at the time of the child’s birth. For students seeking HRM dissertation help, understanding the legal framework surrounding surrogacy in the UK can provide the most valuable insights for their research.

The existing laws have made both single parent and couples to become a parent through surrogacy. There is a surrogacy arrangement and the any intended parent can apply for a parental order. If only the process was easier, there would not have been multiple conflicts as to the application of the existing laws in regard to human rights of the parties involve. This essay will present certain provisions of the existing legal framework that produce conflicting human rights, conflict of law, and non-alignment between the case law principle and national legal norms. This essay will cite and discuss cases such as Re Z (A Child) (No 2) that opened up opportunities to single parent, Mennesson v. France and LABASSEE v. FRANCE, which dealt with transnational surrogacy arrangements, Paradiso and Campanelli v Italy that set new standards around the concept of family life, as envisioned under Article 8 of the European Convention on Human Rights in respect to child’s right to respect for private and family life and many other cases that will help determine whether the existing EU or domestic legal frameworks are enough or need improvement.

This essay will present certain areas that present practical problems of applicability of laws, such as the restrictive nature of the conditions of parental order, legal parentage of children born to foreign surrogates, or safeguards of surrogates or the child’s right. It will also provide certain recommendations based on the case laws and legal principles that will be discussed in this essay.

About Surrogacy and relevant laws

The UK laws permit surrogacy. The only way legal parenthood can be transferred to intended parents through a parental order or adoption after the child is born. However, it does not make a surrogacy agreement enforceable. It does allow the parties to record arrangement of who the surrogate agreement will work out. Under the law, a surrogate is the legal parent of the child at their birth. Their spouse or civil partner will also be the second parent of the child at birth, unless they did not give their permission. The main legislation concerning surrogacy is the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. Surrogacy Arrangements Act of 1985 concerns making of application for parental orders. It makes surrogacy contracts unenforceable. Surrogacy arrangements are permitted, but they are not enforceable. A surrogate mother cannot be forced to surrender the child. The Human Fertilisation and Embryology Act of 2008 recognise the surrogate as the child's legal mother at the time of the child’s birth.

To become the child’s legal parent, there must be an application for a parental order or adoption. An intended parent can apply for such a parental order on their own or with a partner. If the application is with a partner, one of the partners must be related genetically to the child. The applicants must be either married, civil partners, or living as partners. The Other condition is that the applicant must have the child living with you and reside permanently in the United Kingdom, Channel Islands or Isle of Man. The law says that if the applicant applies on their own, they must be genetically related to the child; they must have the child living with them; and must reside permanently in the UK, Channel Islands or Isle of Man. In both the scenario, the application must be applied within 6 weeks from the child’s birth.

The UK law bases its view of maternity on the 'mater semper certa est’ doctrine specified in Human Fertilisation and Embryology Act 2008, s33(1) that provides that ‘the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs’. This provision also addresses surrogacy arrangements. The UK law further provides that a child must be registered within six weeks or forty–two days of their birth. Thus, the 'mater semper certa est’ doctrine of maternity cannot be refuted for this period. But, due to limitation of getting a birth certificate, the child is issue one with the name of the surrogate. It is only when a parental order is issued that the name of the intended parent become legal parents. If the surrogate gives birth to the child abroad, the intended parent can only apply for a parental order if they and their partner are living in the United Kingdom. However, if the child is not a national of United Kingdom, they will need a visa to enter the United Kingdom during this process. If there is a disagreement about who the intended parents or the surrogate should be the legal parents the courts will determine based on the child’ best interests. In case of use of surrogate, the intended parent and the partner may be eligible for adoption and paternity pay and leave. In case intended parent not are eligible for paid leave, they may take parental or annual leave. Surrogate employees also have the right to 52 weeks’ maternity leave and can return to their job after the leave. This right to maternity leave is not affected by what they do after the child’s birth. This right of surrogate to maternity leaves is dealt with in the case CD v ST where judge AG Kokott did not see any difference between the surrogate and the intended mothers.

Impact of ECHR, Article 8 and relevant case laws on UK laws on surrogacy

Article 8 of European Convention of Human Rights 1950 provides to every EU citizen the right to respect for private and family life, “his home and his correspondence, except that it could be interfered in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. For a person to invoke Article 8 of ECHR, the applicant must demonstrate that the complaint comes under its scope of right to private and family life. The concept of private life is broad. It covers personal identify, personal development, physical and psychological integrity as well as personal engagement with others. The following paragraphs will review how Article 8 is relevant with surrogacy, which is one sensitive area that touches on all these aspects of human rights. One thing is sure that it will be problematic where surrogacy arrangements bring continuous disputes between the parties, as is seen in the many cases cited here. Many child arrangement orders have been made to manage parent child relationships out of surrogacy arrangements.

Sara Rintamo, ‘Regulation of Cross-Border Surrogacy In Light of the European Convention on Human Rights & Domestic and the European Court of Human Rights Case Law’ (2016) University of Helsink.
M Wells-Greco, ‘United Kingdom’ in K Trimmings and P Beaumont (eds.) International Surrogacy Arrangements (Hart Publishing 2013).
Connie Healy, ‘Commentary on CD v ST’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore (eds) Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing 2017).

The rights provided under Article 8 have contributed to shaping the surrogacy laws and rights of relevant parties, who are the intended parties, the surrogates, and the child. For example, a single intended parent was not allowed to apply for parental order under the law. But, after the judgment in the case of Re Z (A Child) (No 2) opened up opportunities to single parent to be intended parents who can apply for parental order. The court declared that Surrogacy Arrangements Act 1985, s54(1) and (2) prevent the applicant from obtaining a parental order and hence are not compatible with the applicant’s rights and his child under Article 14 read with Article 8 of ECHR. According to the High Court judges, the surrogacy law is 'irreconcilably conflicting' and 'the very antithesis of sensible'. The President of the Family Division, one of the UK's most senior family judges, termed the law to be against the Human Rights Act and he stated it discriminates against the children of single parents and breached their human rights. After this judgment, the UK Government amended the Human Fertilisation and Embryology Act 2008 through a Remedial Order on 20 December 2018 enabling a sole applicant to obtain legal parenthood. Another area that shows some impact of Article 8 is in the judgment in the case of Mennesson v. France, and LABASSEE v. FRANCE, which dealt with children born through surrogacy arrangements in the United States. The children became US citizens by birth, but they become stateless, creating a potential risk in transnational surrogacy arrangements. France did not recognize surrogacy parental relations as there was a ban on surrogate births. But, Article 8 provides protection of such children born outside the member States. The European Court of Human Rights does not require member States to legalise surrogacy and member States may require proof of parentage for children before issuing identity papers of child. However, rights under the Article includes child’s right to private rights that requires that national law to recognise legal relationship between the child and the intended parent.

Stephen Gilmore and Lisa Glennon, Hayes and Williams' Family Law (Oxford University Press 2018).
Ibid
Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam).
Mennesson v. France, application No. 65192/11.
LABASSEE v. FRANCE, 65941/11.

The practical difficulties arising from surrogacy laws

The UK laws on surrogacy create certain inevitable uncertainty. There is difficult to find a surrogate in the UK because of the complexity around surrogacy such as non-enforceability of surrogacy agreements, prohibiting on commercialisation and advertisement, health care issues of surrogates, or regulatory choice around birth certificates. This difficulty contributes to oversee surrogacy. The 24th January 2017 Grand Chamber judgment of the European Court of Human Rights in Paradiso and Campanelli v Italy has implications on cross-border surrogacy in Europe. This judgment has set new standards around the concept of family life, as envisioned under Article 8 of the European Convention on Human Rights. In this case, the applicants invoked the child’s right to respect for private and family life as guaranteed by Article 8 of ECHR. ECtHR held the complaint by the applicants on behalf of the child as inadmissible, for they could not represent the child. But, it admitted the existence of a de facto family life, where the applicants “acted as parents” towards the child and lived in Italy with the child for six months. Based on this, the Court found that irreversible removal of the child violated the right to private and family life. One criticism is that the judgment empowers the Court to dismantle the government authorities dealing with problem of child trafficking. In the judgment, the dissenting opinion of judges Raimondi and Spano suggested that this amounts to denying legitimacy of the State’s choice of not recognising gestational surrogacy. Such a situation would lead to the systematic condemnation of refusals to register created oversee de facto situations illegally. The Grand Chamber also recognises that surrogacy creates a risk of child trafficking and cited a former decision in D. and Others v. Belgium that established a link between surrogacy and human trafficking. One important point to be noted here is the principle in the case of Moser v Austria, that parents must have involved sufficiently in the decision making process in order that they can invoke their rights under Article 8 of ECHR. In relevance, the right to private life as provided under Article 8 of ECHR includes the right of the child to personal autonomy and member states must guarantee sufficient involvement of the child in the decision making process even though the article does not expressly provide requirement procedure.

Linda Hart, ‘Anthropology of kinship meets human rights rationality: limits of marriage and family life in the European Court of Human Rights’ (2018) 20(5) European Societies 816-834.
Sara Rintamo, ‘Regulation of Cross-Border Surrogacy In Light of the European Convention on Human Rights & Domestic and the European Court of Human Rights Case Law’ (2016) University of Helsink.
ECHR, GC, 24 Jan. 2017, Application no. 25358/12, Paradiso and Campanelli v. Italy.
Marianna Iliadou, ‘Surrogacy and the ECtHR: Reflections on Paradiso and Campanelli v Italy’ (2019) 27(1) Medical law review 144-154.
ECHR, GC, 24 Jan. 2017, Application no. 25358/12, Paradiso and Campanelli v. Italy.
J.P Marguénaud , ‘L'exagération du droit au respect de la vie familiale des parents d’intention de l’enfant né

Article 8 ECHR guarantees the right to respect for private and family life. This right has reportedly imported extensive obligations to recognise the parent–child relationships, especially created through overseas surrogacy arrangements. This sped up the privatisation of family law and of system shopping. Article 8 provides for international commercial surrogacy and that of the child’s ‘best interests’. The area of surrogacy concerns conflicting human rights considerations. The European Court of Human Rights has reportedly facilitated untrammelled system shopping in this sensitive area of law and dismantled domestic legislative choices, without a convincing alternative analysis. There are a few areas of concern when it comes to the surrogacy laws. The transfer of parenthood needs a court order. This may present a lengthy period for effective transfer causing practical and emotional problems to the parties involved. The earlier Human Fertilisation and Embryology Act 2008 may not be clear in all aspects as to the rights of the surrogates and this may not provide sufficient support to their commitment to carry the child. This is one of the main reasons of the reported shortage of UK surrogates. Surrogacy Arrangements Act 1985 also prohibited the commercial brokering of surrogacy arrangements and banned advertising either seeking or offering surrogacy services. Even though the surrogacy agreement is not enforceable, intended parents are making online informal surrogacy arrangements with surrogates in countries that legalise surrogacy. The Surrogacy Arrangements Act 1985 makes a criminal offence of advertisement related with surrogacy. The offence covers advertisements by intended parents as well as surrogates and third parties, who facilitate surrogacy arrangements. The legislation intends to limit means that could establish communication between these parties. However, this particular provision does not seem to have been enforced given the existence of online advertisements in online forums, magazines and exhibitions. This opens tensions and vulnerability that causes entanglement in long legal process until the child is born, or even after the child’s birth. Furthermore, surrogacy in such countries that legalise surrogacy may prove expensive of intended parents or may be a risk affair where vulnerable surrogates are opened to risk of exploitation. Children that are born through international surrogacy are not protected. They may be rendered 'stateless and parentless' for months.

ECHR, 8 July 2014, application no. 29176/13, D. and Others v. Belgium.
Moser v Austria, appl. no. 1264/02, ECtHR 17 December 2002.
Hoge Raad, ‘The Netherlands Supreme Court’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing 2017).
Máire Ní Shúilleabháin, ‘Surrogacy, System Shopping, and Article 8 of the European Convention on Human Rights’ 33(1) (2019) International Journal of Law, Policy and the Family 104-122.

It needs to be determined whether the current laws dealing with all core aspects of surrogacy involving legal parentage of children born to foreign surrogates. The conditions for making a parental order may be unnecessarily restrictive. It does not provide required screening or counseling process involving the parties. Non-uniform process is bound to occur. Obtaining parental order causes serious emotional and practical difficulties. The application is allowed only after the child's birth and must be applied within 6 weeks from the child’s birth. The order requires surrogate's consent. The UK regulates parentages in favour of intended parents through obtaining parental order procedure after the child birth. The mater semper certa est doctrine applies in the UK and so, surrogate is entitled to change her mind. It is for the court to ensure the surrogate mother gives free consent freely, which also means that if she changes mind, no force can be applied on her to surrender the child. This legal provision allows potential conflicts arising out of different values placed on the surrogate's health.This was seen in the case of Re AB (Surrogacy: Consent), where the surrogate refuses to give consent to parental orders after giving consent to the intended parents to raise the twin children. This occurred when relationship between the intended parents and the surrogate deteriorated after obstetrician expressed concerns about surrogate’s health if the pregnancy continued and the intended parents did not apparently show concerns. The requirement of free consent or non-imposition to give consent is evident in the Surrogacy Arrangements Act 1985, s1(A) as modified by the Human Fertilisation and Embryology Act 2008. Accordingly, the requirements or criteria for intended parents to obtain a parental order are set out in the Human Fertilisation and Embryology Act 2008, s54. However, there are additional problematic requirements of the child to be at the residence of the intended parents. This causes practical care management problem of the child in situation such as when the child becomes seriously ill. Until the parental order is passed, the surrogate holds the parental decision‐making authority and not with the applicants, who have the child at their residence. It also indicates the unsuitability to enforce Human Fertilisation and Embryology Act 2008, s54 against cross-border surrogacy arrangements. It desires some reforms in this regard as the existing legal framework is not able to tackle commercial surrogacy. One of the reasons for such unsuitability is the obvious clash between the judicial power and executive power. Under para 8.7 of Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the UK authority made the parental order where one of the intended parents or both is/are British citizens and accordingly the child becomes a British citizens. The problem, however, is the requirement of the child to be with the intended parents, where the child is in another country. Problem ensues in bringing the child to the UK. Here, it is not a court order that is required, but an executive order to bring the child to the UK so that a parental order could be obtained. So, the only option, if otherwise this does not occur, is to go for adoption, which also presents a different set of complexities in conforming to procedural requirements. There is one case that will present these complexities. It is the case of Re K, that involved a commercial surrogacy arrangement between and Indian married couple and an English couple and a twins were born in India. The conflict was that Indian law considered the British parents as the parents of the child, whereas English law considers the Indian couple to be the legal parents, as provided under HFEA 2008, s35. The parental order application could not be processes as the child was in India. The court held that no indication as to granting of entry to the child to the UK could be made if it was likely that the English courts would grant the parental order.

Natalie Gamble, ‘A better legal framework for United Kingdom surrogacy’ in Susan Golombok, Rosamund Scott and John B. Appleby (eds.) Regulating Reproductive Donation (Cambridge University Press 2016).
Ibid
Martin Hevia, ‘Surrogacy, privacy, and the American Convention on Human Rights’ (2018) 5(2) Journal of Law and the Biosciences 375-397.
Nathan Hodson and Susan Bewley, ‘Parental orders and the rights of surrogate mothers’ (2018) 125(3) BJOG: An International Journal of Obstetrics & Gynaecology 352-352.
Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam).
Ibid
Maebh Harding, Conflict of Laws (Routledge 2013).
Re K [2010] EWHC 1180 (Fam).

The restrictive nature of the conditions to be met for making a parental order causes a complex dynamic between the legislation, executive and the judiciary. These organs need to be aligned to achieve the purpose of the law, the rights of the parties involved, the public interests, or all of them. The question is how? One instance is how the alignment will occur in situation arising from the requirement of parental order that one of the partners has to have a genetic connection with the child if the intended partners lack functioning gametes. Another issue is related with payment to surrogates. In this case, the court uses the test of reasonableness in regard to payment to surrogates. If payment to surrogate if anything more than “expenses reasonably incurred,” parental order will not be passed by the court. Even more, the judgment in this regard may take time and when it happens the child is in the care of the intended parents. So, the test of reasonableness can also be applied to the time the court makes the judgment, and it seems to be in the child's best interest to explore the issue of payment carefully. This phrase “expenses reasonably incurred” has to be properly defined particularly in regard to offshore surrogacy arrangements that are expensive. Courts in the UK have emphasised in their case laws that the child’s welfare exceeds the prohibition of payment. For instance, in Re L (A Minor) Justice Hedley observed that payments made in this case exceeded reasonable expenses. He presented a criticism on the concept of ‘reasonable expenses’ to be too vague, but cited that under the Human Fertilisation and Embryology Act 2008 and other regulation such as 2010 Regulations (S1 2010/986) if there is an extremely evident breach of public policy, the determination could sway in favour of public policy over the paramount consideration of child’s welfare. Similarly, Sir Nicholas Wall P gave a ruling in regard to an international surrogacy case that an amount as high as £27,000 cannot stop the intended parent’s parental order. This gave to situations where when intended parents make payments to surrogates overseas beyond reasonable expenses, the courts have approved of them. Even more so, parenthood rights are awarded to couples who entered into a commercial surrogacy arrangement overseas. These case laws go against the country’s legislation of preventing a child to become a commodity. This creates multiple opportunities of abuses in non-commercial surrogacy and also complexity in weighing public interest and welfare of a child and that of private family life. But, a counter argument could be that if the legislation intends to prevent a child from becoming a commodity, there is no sense in bringing changes in the Human Fertilisation and Embryology Act 2008, s59, read with Section 2A of the Surrogacy Arrangements Act 1985, which exempts services offered on a not-for-profit basis from the current legal prohibition enabling a non-profit making body to get involved in surrogacy arrangements. This also means that not for profit agencies can receive ‘reasonable payment’ to meet costs arising from initiating negotiations in making surrogacy arrangements. This does not appear to be a complete solution. It legalises the role of surrogacy not-for profit agencies, but no due process for registering or governing their activities are in order. Such a statutory response to this sensitive issue is best described as ‘tinkering with the existing legal provisions’.

Ibid
Sara Rintamo, ‘Regulation of Cross-Border Surrogacy In Light of the European Convention on Human Rights & Domestic and the European Court of Human Rights Case Law’ (2016) University of Helsink.
Re L (A Minor) [2010] EWHC 3146 (Fam), 2010, para 10.
Re X and Y (Children) [2011] EWHC 3147 (Fam)..

An equally conflicting right arising from surrogacy is regarding the rights of the surrogates. Surrogacy violates rights of surrogates, who gives birth to the child and relinquishes any right to the child after birth. Thus, the legal requirements to obtain parental orders are excessively restrictive and also anachronistic. These legal requirements have created anomalies, which leaves the child in a legal mess. There are instances where these requirements are bypassed. It is also against rights of egg donors when gays couple. Egg donation may also cause serious health issues and loss of fertility to surrogates. Issue as this was seen in the case of S.H. and others v. Austria, where ECtHR recognised that risk of ‘exploitation of women in vulnerable situations’ in egg donation. There is also a risk of possible physical effects and health risks associated with harvesting eggs and potential conflicting scenario arising out of the ‘creation of atypical family relations because of split motherhood’.

Re: X & Y, [2008] EWHC 3030, No. FD08P01466.
European Centre for Law and Justice, ‘SURROGATE MOTHERHOOD: A VIOLATION OF HUMAN RIGHTS STRASBOURG’ (2012) REPORT PRESENTED AT THE COUNCIL OF EUROPE,
Kirsty Horsey and Sally Sheldon, ‘Still Hazy After All These Years: The Law Regulating Surrogacy (2012) 20 Medical Law Review 67–89.
M Fox, ‘The Human Fertilisation and Embryology Act 2008: Tinkering at the Margins’ (2009) 17(3) Feminist Legal Studies 333.
Amel Alghrani and Danielle Griffiths, ‘The regulation of surrogacy in the United Kingdom: the case for reform’ (2017) 29(2) Child and Family Law Quarterly 165-86.
S.H. and others v. Austria, no. 57813/00 para 113.

Child’s right to know parentage

Knowing paternity is allowed under Human Fertilisation and Embryology Act 2008, s31ZA. Non-disclosure can cause psychological damage, low self-esteem, trust issues and similar mental problems. Violation of this right to know one’s own parental lineage violates the rights provided under Article 8, which provides for protection of health or morals or for the protection of the rights and freedoms of others. In Godelli v Italy, it was observed that this right to identity is protected by Article 8 of ECHR 1950 and it includes knowing one’s parentage, which forms a core part of right to life as provided under Article 8. However, this right cannot be absolute as it has to be weighed against rights of other affected parties. Such rights include right of the surrogate to give birth anonymously.

English law regarding paternity testing focuses on the right of the child to know their genetic origins except under compelling reasons that are based on the child’s welfare. This was reflected in the ruling of the case Re T (Paternity: Ordering Blood Tests) where it was ruled that the child’s best interests that have to be balanced against competing interests of affected adults. Knowing paternity very much depends on the child’s best interests. This is applicable in situation such as where doubts about the child’s paternity are in public domain, which the mother and her spouse know, which would otherwise exposed the child to significant risk if the child was informed sooner; relationship between the mother and the spouse is stable; and any blood tests carried out might determine applications for contact and parental responsibility. The intention of parties in the relationships has to be taken into account as well. As such, provisions under Article 8 of ECHR must be respected to protect the child’s private and family life. There are conflicting rights, that of the mother and husband and the applicant for parental responsibility; the child’s right to know his true identity; or the right of the child of a possible contact with natural parents, which serve as a compelling reason to consider the best interests of the child. However, the choice of best interest does not mean the flaws of national legislation are covered. In the case of AB v CD (Surrogacy: Time limit and consent), the late Parental Orders applications was nevertheless approved considering the child's best interests. This completely oversees lack of clarity around certain factors to have been considered, such as surrogate's marital status for cases where the consent of the other legal parent may be required, literacy issues of the surrogate, whether she was able to sign formal documents written in English, whether she knew about the proportionality of amount received even while she signs off all her health rights during the pregnancy.

A Turner and A Coyle, ‘What does it mean to be a donor offspring? The identity experiences of adults conceived by donor insemination and the implications for counselling and therapy’ (2000) 15 Human Reproduction 2041.
Godelli v Italy (Application No 33783/09) (unreported) 25 September 2012, at para 52.
Eva Steiner, ‘Odièvre v France-Desperately seeking mother-anonymous births in the European Court of Human Rights’ 15 (2003) Child & Fam.L.Q 425.
Stephen Gilmore and Lisa Glennon, Hayes and Williams’ Family Law (Oxford University Press 2016).
Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190. 10/05/2001.
Jens M. Scherpe, European Family Law Volume III: Family Law in a European Perspective (Edward Elgar Publishing 2016).

Areas of improvement

Cases mentioned in this essay and others such as H v S (Surrogacy Agreement), Re B v C (Surrogacy: Adoption, Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order), and A & B (Children) (Surrogacy: Parental Orders: Time Limits) are high-profile surrogacy cases that highlight the need of reforming UK's law on surrogacy. They particularly point out reform requirement in the specific area of eligibility for parental orders. But, points to remember is that the social aspects of surrogacy have not been dealt with in a proper manner by all the existing and in fact conflicting domestic and international and EU legal framework and case laws. Any legal reforms to be undertaken must incorporate the understanding that the dynamics in a two-parents family are different from the complex relationship that exist in a family born out of surrogacy. There must be a collaborative strategy based on care towards surrogates and children and based on this strategy, a relationship out of surrogacy could be characterised properly.

As seen in this essay, there is always a set of conflicting rights, that of the child, intended parents and the surrogate. Due to the clash of these conflicting rights and the social norms, the laws are finding it difficult to present a just and fair framework. As discussed, surrogacy, especially of transnational nature, attracts a possible link with child trafficking. It is a complex phenomenon with a multitude of social situations and multiple regulators that of the member states and the EU, each trying to set or balance norms. The possibility of establishing a coherent system of norms is difficult, which would have otherwise created basis for establishing unlawfulness and punishability of specific criminal behaviors. Surrogacy is contractual, though it is not enforceable, and it may involve exchange for remuneration, the test of the extent of payment is confusing considering the case principle around as seen above, and adoption procedures, which may be worked around. There is always one area of contention, which is the protection of best interests of children born through surrogacy. The European Court of Human Rights (ECtHR) tackled certain related problem against the application of Convention rights in surrogacy concern in context. It did so in the case of Mennesson v France and Paradiso and Campanelli v Italy. When cases on surrogacy appear, it creates tension between the parties and between the domestic and EU norms. Some suggestions as to bring reconciliation between the conflicting rights and norms could be around the focus on the child’s right to identity, which forms a part of the right to respect private life. Case laws obligate the member states to respect the legal status of the child in both transnational and domestic surrogacy. As such, concepts around the child’s identity must be given more focus covering their relationship with genetic, gestational, and intended parents. This calls for narrow states’ interventions around the legal status of the child.

Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190. 10/05/2001.
AB v CD (Surrogacy: Time limit and consent) [2015] EWFC 12.
H v S (Surrogacy Agreement) [2015] EWFC 36
B v C (Surrogacy: Adoption) [2015] EWFC 17.
Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73.
A & B (Children) (Surrogacy: Parental Orders: Time Limits) [2015] EWHC 911 (Fam).
Mary Lyndon Shanley and Sujatha Jesudason, ‘Surrogacy: Reinscribing or pluralizing understanding of family?’ in Daniela Cutas and Sarah Chan, Families – Beyond the Nuclear Ideal (A&C Black 2012).

The cross-border or international surrogacy represents that of a reproductive tourism. The laws and court principle still leave opportunities to people to find a way around the legal prohibitions and restrictions. This may also be termed as a direct consequence of restrictive domestic legislations and is often commercialised, goes against the legal prohibition of commercialising or advertising surrogacy.

The issue of how member States deal with the legal identities of children born of transnational surrogacy arrangements was dealt in cases like Mennesson v. France and Labassee v. France. The Grand Chamber presents the factor of the child’s best interests and that of the margin of appreciation enjoyed by member States. The reasoning is that non-recognition produces detrimental impact to parents, and to the children, whose identify in the society is left in legal uncertainty According to the Advisory Opinion of the European Court of Human Rights, the is not engaged with the facts of the case and also it provides no ruling on the outcome of domestic proceedings. It is the domestic court that has to solve the matter pending before them. The Opinion of the Court is limited to “points that are directly connected to the proceedings pending at the domestic level”. The Opinion does not address the child’s right to respect for family life and that of the intended parents including their right to private life.

Kirsty Horsey, Fraying at the Edges: UK Surrogacy Law in 2015: H v S (Surrogacy Agreement)[2015] EWFC 36, Re B v C (Surrogacy: Adoption)[2015] EWFC 17, Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order)[2015] EWFC 73, A & B (Children)(Surrogacy: Parental Orders: Time Limits)[2015] EWHC 911 (Fam)’ (2016) 24(4) Medical law review 608-621.
Andrea Mulligan, ‘Identity rights and sensitive ethical questions: The European convention on human rights and the regulation of surrogacy arrangements’ 26(3) (2018) Medical law review 449-475.
B.I. Chakhvadze, G.B. Chakhvadze and Fedotova E.V., ‘Does the practice of the European Court of Human Rights have any legal implications on the development of cross-border surrogacy?’ 1(3) (2018) Journal of Medical Research and Health Sciences.

The absence of a robust framework of legislation is making enforceability of surrogacy arrangements challenging. The non-enforceability of surrogacy agreements also contributes to the challenges. Surrogacy is complex and any new reforms will face multi-facet issues. It has to be dealt with ethical questions, question of public interest, broad human rights concerns. The reform must be specific to the UK as laws of foreign land cannot be influenced. There must be proper safeguards of surrogates but at the same time proper legal background checks procedures must be in place governing the surrogates and intended parents. There must be a sensitisation programs for the parties involved. This may increase domestic demand of surrogates and cut down on oversee surrogacy cases. It may lead to reduction in conflict of laws, which is problematic as otherwise the question of human rights concerns versus public interest question comes into picture. If otherwise such reforms are not possible, instance of oversee surrogacy will continue along with conflict of states law and that of human rights and public interest will continue. Unless a robust framework is laid out, the ambiguity or flaw in the legal system will continue. There will be exploitation of surrogates or violation of rights of intended parents and more specifically the child’s right. The best interest of the child seems to be the right rule to shape the rules or court principle, but public concerns such as child trafficking clashes with this best interest rule. This is the reason why proper legal framework must be in place covering surrogacy arrangement, both domestic and international, procedure for ensuring parental status, awareness of rights and the ways to enforce, bilateral treaties to ease conflict of laws, and more important enforceable formal contract. Such framework must address question as to the legitimate limits and acceptability of establishing family relations, and such limits must be embodied in the concerned legislation. Such steps will be able to address issues concerning use of female reproductive cells and reproductive capacities, as was seen in cases such as S.H. and others v. Austria and Mennesson v. France, which dealt with assisted procreation, focusing on egg donation and surrogacy. The extent of alignment between the current regulatory framework on surrogacy and children’s rights approach could be drawn from provisions under the UN Convention on the Rights of the Child 1989 and its Optional Protocols, and General Comments and Concluding Observations from the Committee on the Rights of the Child. The children’s rights approach brings forth the need for a holistic framework, which ensures protection of rights of children at stages of their childhood. This will also allow incorporating the children’s views and experiences. The central role of parents is also brought forth in protecting the child’s rights and ensuring relevant state support. Further, written surrogacy agreements must be encouraged as a requirement before conception to safeguard all the parties involved in surrogacy. There must be a quicker response accordingly to give status of children born through surrogacy, domestic and overseas. The UK Law Commission’s 2019 proposals for a new pathway includes reformation such as allowing intended parents to become legal parents of the child at birth. It proposes for surrogacy arrangement to require safeguards, such as counselling and independent legal advice and a surrogacy regulator and organisations to oversee the arrangements. The surrogate would be entitled to object for a short period after the birth. There would be a national register allowing the child to access information about their origins.

Alice Margaria, ‘Parenthood and cross-border surrogacy: what is' new'? The ECtHR's first advisory opinion." (2020) Medical Law Review 1-14.
Ibid

Conclusion

It will be always be problematic in the absence of a robust legal framework, where surrogacy arrangements bring continuous disputes between the parties, as is seen in the many cases cited here. Many child arrangement orders have been made to manage parent child relationships out of surrogacy arrangements. Case laws discussed in this essay demonstrate that courts could manoeuvre the law wherever necessary to prevent children out of surrogacy from being parentless and without any safeguards of their rights. But, discussion in this essay has seen that surrogacy related issues pass through the net of court tests and legal principle, such as the child’s best interests or public interest, with consequences that are less than preferable.

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Based on the derivation from the case laws and literature around surrogacy laws, as recommended in this essay, a review and amendment of the existing relevant legislation is necessary and seriously overdue. It is understandable that Article 8 of ECHR acts like a grundnorm that governs the rights of the parties involved in this. This article acts as the guiding enforceable principle for the courts, but EU courts and domestic courts in dealing with the sensitive cases of surrogacy. Surrogacy and the laws touch many social, commercial legal and regulatory aspects. All the cases discussed in this essay, including Re Z (A Child) (No 2, Mennesson v. France, LABASSEE v. FRANCE and many more contribute to affirming the good impact of the existing laws as well as describes the current situation and the corresponding need of improvement. These cases help in determining rights of the parties involved. For example, surrogates rights to maternity leaves, opportunities to single parent to be intended parents, emphasis on national law to recognise legal relationship between the child and the intended parent, concept of best interest of the child in determining right to family of private life of the intended parents or the child, surrogates right to deny consent, and many more.

As a last note, to reiterate the specific recommendation given earlier in this essay, there must be a robust legal framework with an even more robust regulatory system based on social and ethical aspects relevant with surrogacy. The court can build on the existing doctrines and principle a test of limits that could help determine validity and reasonable of the relational transactions between the parties, such as while establishing a link between surrogacy and human trafficking measured against public interest and safety; facilitating recognition of relation between the intended parents and the child measured against fair procedure of transfer of parenthood through parental orders; or making formal surrogacy agreement enforceable. This will bring clarity in legislation such as the Human Fertilisation and Embryology Act 2008 as to the rights of the surrogates and sufficient support to their commitment to carry the child; or the Surrogacy Arrangements Act 1985 that could effectively make commercial brokering of surrogacy arrangements enforceable. It will also help settled or manage conflicting rights arising from surrogacy, such as parental responsibility; child’s right to know his true identity; or the right of the child of a possible contact with natural parents.

Surrogacy is complex and its multi-facet issues have to be dealt with by a blended approach covering questions on ethics, public interest, human rights and legal and regulatory compliance. If made specific to the UK with proper safeguards and awareness and sensitisation programmes, the new reformation may mitigate the risks and conflicts arising of surrogacy.

Legislation

The Surrogacy Arrangements Act 1985

The Human Fertilisation and Embryology Act of 2008

Human Fertilisation and Embryology (Parental Orders) Regulations 2010

Cases

AB v CD (Surrogacy: Time limit and consent) [2015] EWFC 12.

B v C (Surrogacy: Adoption) [2015] EWFC 17.

CD v ST Case C-162/12 [2014] ECR I-000.

ECHR, GC, 24 Jan. 2017, Application no. 25358/12, Paradiso and Campanelli v. Italy.

ECHR, 8 July 2014, application no. 29176/13, D. and Others v. Belgium.

Godelli v Italy (Application No 33783/09) (unreported) 25 September 2012, at para 52.

H v S (Surrogacy Agreement) [2015] EWFC 36

LABASSEE v. FRANCE, 65941/11.

Mennesson v. France, application No. 65192/11.

Moser v Austria, appl. no. 1264/02, ECtHR 17 December 2002.

Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam).

Re K [2010] EWHC 1180 (Fam).

Re L (A Minor) [2010] EWHC 3146 (Fam), 2010, para 10.

Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190. 10/05/2001.

Re: X & Y, [2008] EWHC 3030, No. FD08P01466.

Re X and Y (Children) [2011] EWHC 3147 (Fam)..

Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam)

S.H. and others v. Austria, no. 57813/00 para 113.

Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73.

A & B (Children) (Surrogacy: Parental Orders: Time Limits) [2015] EWHC 911 (Fam).

Books

Gamble N, ‘A better legal framework for United Kingdom surrogacy’ in Susan Golombok, Rosamund Scott and John B. Appleby (eds.) Regulating Reproductive Donation (Cambridge University Press 2016).

Gilmore S and Lisa Glennon, Hayes and Williams' Family Law (Oxford University Press 2018).

Gilmore S and Lisa Glennon, Hayes and Williams’ Family Law (Oxford University Press 2016).

Harding M, Conflict of Laws (Routledge 2013).

Healy C, ‘Commentary on CD v ST’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore (eds) Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing 2017).

Raad H, ‘The Netherlands Supreme Court’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing 2017).

Scherpe JM, European Family Law Volume III: Family Law in a European Perspective (Edward Elgar Publishing 2016).

Wells-Greco M, ‘United Kingdom’ in K Trimmings and P Beaumont (eds.) International Surrogacy Arrangements (Hart Publishing 2013).

Journals

Alghrani A and Danielle Griffiths, ‘The regulation of surrogacy in the United Kingdom: the case for reform’ (2017) 29(2) Child and Family Law Quarterly 165-86.

Chakhvadze BI, G.B. Chakhvadze and Fedotova E.V., ‘Does the practice of the European Court of Human Rights have any legal implications on the development of cross-border surrogacy?’ 1(3) (2018) Journal of Medical Research and Health Sciences.

Fox M, ‘The Human Fertilisation and Embryology Act 2008: Tinkering at the Margins’ (2009) 17(3) Feminist Legal Studies 333.

Hart L, ‘Anthropology of kinship meets human rights rationality: limits of marriage and family life in the European Court of Human Rights’ (2018) 20(5) European Societies 816-834.

Hevia M, ‘Surrogacy, privacy, and the American Convention on Human Rights’ (2018) 5(2) Journal of Law and the Biosciences 375-397.

Hodson N and Susan Bewley, ‘Parental orders and the rights of surrogate mothers’ (2018) 125(3) BJOG: An International Journal of Obstetrics & Gynaecology 352-352.

Horsey K and Sally Sheldon, ‘Still Hazy After All These Years: The Law Regulating Surrogacy (2012) 20 Medical Law Review 67–89.

Horsey K, Fraying at the Edges: UK Surrogacy Law in 2015: H v S (Surrogacy Agreement)[2015] EWFC 36, Re B v C (Surrogacy: Adoption)[2015] EWFC 17, Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order)[2015] EWFC 73, A & B (Children)(Surrogacy: Parental Orders: Time Limits)[2015] EWHC 911 (Fam)’ (2016) 24(4) Medical law review 608-621.

Iliadou M, ‘Surrogacy and the ECtHR: Reflections on Paradiso and Campanelli v Italy’ (2019) 27(1) Medical law review 144-154.

Margaria A, ‘Parenthood and cross-border surrogacy: what is' new'? The ECtHR's first advisory opinion." (2020) Medical Law Review 1-14.

Mulligan A, ‘Identity rights and sensitive ethical questions: The European convention on human rights and the regulation of surrogacy arrangements’ 26(3) (2018) Medical law review 449-475.

Rintamo S, ‘Regulation of Cross-Border Surrogacy In Light of the European Convention on Human Rights & Domestic and the European Court of Human Rights Case Law’ (2016) University of Helsink.

Shúilleabháin MN, ‘Surrogacy, System Shopping, and Article 8 of the European Convention on Human Rights’ 33(1) (2019) International Journal of Law, Policy and the Family 104-122.

Turner A and A Coyle, ‘What does it mean to be a donor offspring? The identity experiences of adults conceived by donor insemination and the implications for counselling and therapy’ (2000) 15 Human Reproduction 2041.

Shanley ML and Sujatha Jesudason, ‘Surrogacy: Reinscribing or pluralizing understanding of family?’ in Daniela Cutas and Sarah Chan, Families – Beyond the Nuclear Ideal (A&C Black 2012).

Steiner E, ‘Odièvre v France-Desperately seeking mother-anonymous births in the European Court of Human Rights’ 15 (2003) Child & Fam.L.Q 425.

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