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Ordo Iuris before the ECtHR in defense of the dignity of women and children used in surrogacy

Published: 02.08.2022

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· The Strasbourg Court receives complaints against states that refuse to recognize the legal consequences of the so-called surrogacy - surrogacy.

· Surrogacy consists in hiring a woman who wishes to have children, who undertakes to undergo IVF, give birth to a child and transfer parental rights to the principals.

· Surrogation is still illegal in most European countries, so couples unable to conceive naturally - for example same-sex couples - go abroad to benefit from this "service".

· The Ordo Iuris Institute joins the proceedings before the ECtHR in this type of case as a friend of the court, recalling that surrogacy is incompatible with the rights of women and children.

The European Court of Human Rights in Strasbourg received a series of complaints from same-sex couples whom Italy did not want to recognize as rightful parents of children conceived under the so-called surrogate abroad. This practice consists in hiring a woman who wishes to have children and obliges them to undergo IVF, give birth to a child and renounce their parental rights - usually for remuneration. Usually, in in vitro fertilization, gametes from both clients are used, and if it is impossible to collect from one of them - from an anonymous donor. There are cases when both the sperm and the egg come from anonymous donors - then the child is not related to any of the principals. Nevertheless, they still strive to be recognized as full parents in their home countries.

In most European countries, surrogate is illegal, but in some - such as India, Ukraine, and the US California - it is allowed. This gave rise to the so-called surrogate tourism, in which couples who are unable to conceive a child by natural means first go abroad in order to communicate with the so-called surrogate, and after the child is born, they bring them back to their homeland, where they try to register as natural parents.

In the case of same-sex couples, a child born by a surrogate, for obvious reasons, may be related only to one of the principals. In such a situation, the authorities of European countries refuse to recognize as a parent a person who is not genetically related to the child thus conceived. This was the case in nine cases against Italy, in which the principal's partner sought recognition as a parent solely on the basis of being in a genetic relationship with the father or mother of the child. The Ordo Iuris Institute joined these proceedings as a friend of the court.

- In our opinion, we raise arguments that states have the right not only to prohibit surrogacy in their territory, but also to refuse to recognize the legal consequences of surrogacy carried out by their citizens abroad, where it is legal. We are talking about a practice that offends the dignity of the woman and the child himself, becoming the subject of a kind of commercial transaction between his mother and the couple ordering conception. Surrogacy practices are incompatible, inter alia, with the Convention for the Protection of Human Rights and the Dignity of the Human Being in the Field of the Application of Biology and Medicine and with the Optional Protocol to the UN Convention on the Rights of the Child - noted Weronika Przebierała, director of the International Law Center of the Ordo Iuris Institute.

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