The practice of surrogacy, where a woman bears a child for another person, is on the rise around the world. The issues arising from these arrangements include contractual law, parental status and the welfare and civil status of the child, with accompanying health policy implications, financial, gender and power dynamics.
What medical services is the surrogate mother entitled to in a country where surrogacy is illegal? How can the child’s rights to know its parents be balanced with the biological mother’s or donor’s right to anonymity? Who are the child’s legal parents? What is its nationality?
Firstly, existing regulatory frameworks were not created with surrogacy in mind. In many states, surrogacy is illegal and in others, there is no legal provision for it. Secondly, the answers are different across the EU’s Member States. However, the increase in transnationalism means that surrogacy arrangements frequently cross borders. The European Parliament therefore commissioned a study via LSE Enterprise to analyse the existing and possible legal approaches to these issues.
The study covered empirical, policy and legal perspectives across different EU Member States, with case studies from within and beyond the EU to demonstrate attitudes and practices. A comparative analysis of the different legal frameworks for surrogacy across the EU, together with consideration of how the judiciary across Europe resolve any problems, enabled analysis of the potential remit of the EU in this area and an indication of further research required before developing any EU legal measures.
The report suggests that a principal aim of any EU response should be to go beyond dispute management and manage surrogacy as an international practice, providing certainty on the legal parenthood of the child and its entitlement to move to and settle in the new state. However the lack of consensus between Member States on the legality of surrogacy means that substantial harmonisation of laws is unlikely to take place.
The report was written by Laurence Brunet of Université Paris, Janeen Carruthers from the University of Glasgow and four LSE researchers: Konstantina Davaki of LSE Health, Derek King from PSSRU, Claire Marzo from the European Institute and Julie McCandless from the Law Department.
Read the report