Our question this time in U-talk is: “European countries have very different positions concerning surrogacy. Where is it allowed and where is it prohibited? And do you think harmonisation of the different legislations is possible? “
The answer to this question comes from a legal expert with the Research Centre on Fundamental Rights, (CREDOF), at the University Paris Ouest, Nicolas Hervieu.
“The current situation concerning the issue of surrogacy is very diverse in Europe. Some countries expressly prohibit it, such as France of course, where recently there has been much debate about surrogacy. It’s also prohibited in Germany, Spain, Switzerland and Italy.
“Other countries, though far fewer, expressly authorise surrogacy on their soil, such as the UK, Greece, Russia or Ukraine. And there are countries which have not yet clearly decided in their legislations.
“Do we have to stick to this European diversity? Or, on the contrary, should we try to harmonise these different laws?
“For European institutions and European courts, the point is not about choosing between diversity or harmonisation.
“For the European Court of Human Rights for instance, such diversity is not a problem at all.
“This court is part of the international organisation called the Council of Europe which is made up of 47 European countries, (including the EU’s 28 member states). This court is different from the European Court of Justice based in Luxembourg and which is part of the EU.
“In two very important rulings, issued on 26/06/2014, (concerning the cases 'Mennesson versus France' and 'Labassée versus France'), the European Court of Human Rights explicitly recognised that a state is entitled to prohibit surrogacy on its own soil.
“But the court also recognised that the prohibition of surrogacy could not be made at the expense of children legally born to surrogate mothers in a foreign country. It is for this reason alone that the court ruled against France.
“So in the short term all European states, including those prohibiting surrogacy on their soils, must formally recognise the filiation between the intended parents and those children born through surrogacy abroad.
“This is because otherwise this would violate the children’s right to an identity. Even so, these rulings are not going to entail a harmonisation of European legislations towards the acceptance of surrogacy.
“Some EU institutions differ from the European Court of Human Rights, but they have limited powers in family policy. They can have some influence on the issue but this does not imply harmonisation.
“In the medium- and the long-term, if harmonisation towards acceptance of surrogacy gets momentum in the European Union, it would be due to member states. In any case, the EU’s institutions and courts would only acknowledge it and legislate after this evolution.”
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