by Diana Coutinho, Invited Assistant at the Law School of UMinho

▪

On 22 August, 2016, Law no. 25/2016 was published, regulating the access to surrogacy and performing the fourth amendment to the Portuguese law on medically assisted procreation (Law no. 32/2006, of 26 July). Before Law no. 25/2016 comes into force, resorting to surrogacy was expressly prohibited (whether for a price or free of charge). With the aforementioned legislative amendment, access to surrogacy became possible, provided that under exceptional circumstances (namely, absence of uterus, injury or disease of this organ that absolutely and definitively prevents the woman’s pregnancy or in clinical situations that justify it), free of charge and resorting to the genetic material from at least one of the beneficiaries. However, the new law was not exempt from criticism, culminating in the judgment of the Portuguese Constitutional Court no. 225/2018 and consequent suspension of access to surrogacy. According to the Portuguese Constitutional Court, surrogacy performed under the terms of Law no. 25/2016 – with an exceptional and gratuitous nature and limited only to the cases authorized by law – does not violate the principle of human dignity (neither of the surrogate mother nor of the child), nor the State’s duty of child protection. However, the excessive indeterminacy of the law (as in the case of paragraphs 4, 10 and 11 of Article 8), the absence of the surrogate’s right to repentance (restricted to the possibility of withdrawal of the consent provided by the surrogate only until the beginning of medical assisted procreation’s therapeutic proceedings) and the failure to implement the surrogacy’s nullity regime (paragraph 12 of Article 8, since the law does not distinguish between the effects of a valid contract and a null contract) substantiate the declaration of unconstitutionality. Amendments to the regulation of the surrogacy are greatly expected, in particular the solution that the legislator will find to protect the interests of the parties involved: surrogate mother, beneficiaries and, in particular, the child.
EU member states have different positions on surrogacy. On the one hand, states reject and prohibit it because they consider that surrogacy is an offense against human dignity (of the surrogate mother and the child), a condition for exploitation and vulnerability of women (at risk of commercialization and human trafficking), for ethical and moral reasons, among others. On the other hand, States admit surrogacy in view of the right to constitute a family, the right to freedom of disposition over one’s own body and personal autonomy, the right to free development of personality, among others. The cross-border demand for this method of reproduction (the so-called reproductive tourism) opened the debate on citizenship and on the establishment of affiliation of children born through surrogacy and the parental rights of beneficiaries and surrogate mother. At European level, with regard to the protection and guarantee of children’s rights, we emphasize the importance of the European Convention on the Exercise of Children’s Rights, adopted in Strasbourg on 25 January, 1996 and Article 24 of the Charter of Fundamental Rights of the European Union which protects the best interests of the child. In 2015, the European Parliament condemned this reproductive practice, considering that surrogacy constitutes an offense against women’s dignity and promotes the instrumentalisation of the surrogate’s body and of her reproductive functions by treating her as an object of trade and making her vulnerable to abuse and exploitation[i]. On 21 September, 2016, the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe approved a draft recommendation on surrogacy, in particular on the development of guidelines for safeguarding the rights of children born under surrogacy arrangements and the condemnation/ prohibition of paid surrogacy.

However, on 11 October, 2016, the Parliamentary Assembly of the Council of Europe rejected this draft recommendation (83 votes against 77 in favour) on the grounds that it was conniving with illegal gestation/pregnancy practices and that amendments prohibiting all forms of  surrogacy were not be admissible.

In the context of the Court of Justice of the European Union (CJEU), surrogacy has been related to the social rights of the beneficiaries (intended parents); in fact, the CJEU has already discussed the analogous application or the need for extensive interpretation of the rights to adoptive leave and maternity or paternity leave. In the judgment of the CJEU, Grand Chamber, Case C-363/12, of 18 March, 2014[ii] and in the judgment of the CJEU, Grand Chamber, Case C-167/12, Grand Chamber, of 18 March, 2014[iii] – both references for a preliminary ruling from the United Kingdom -, it was discussed if the intentional/beneficiary/working mother was entitled to a protection similar to protection conferred by Council Directive 92/85/EEC of 19 October, 1992,  on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. In addition, in those judgments, the CJEU also discussed if the failure to grant the abovementioned leave constitutes a violation of the principle of equality and constitutes a case of discrimination on grounds of sex, in breach of Directive 2006/54/EC of the European Parliament and of the Council of 5 July, 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. In Case C-363/12, the CJEU ruled that the refusal to provide an equivalent paid leave to intended mothers is not contrary to that Directive. For CJEU the grant of maternity leave pursuant to Article 8 of the Directive “presupposes that the worker entitled to such leave has been pregnant and has given birth to a child”, that is, it presupposes the fulfilment of the concepts of pregnant worker and worker who has recently given birth in accordance with Article 2 of the Directive. For this reason, the CJEU considered that the female worker who becomes the legal mother of a child born through a surrogacy arrangement “does not fall within the material scope of the directive, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby. Consequently, Member States are not required to provide maternity leave pursuant to that directive to a female worker”[iv]. In Case C-167/12, The CJEU judged that directive 2006/54/CE, particularly Articles 4 and 14, must be interpreted as meaning that “an employer’s refusal to provide maternity leave to a commissioning mother who has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex”. The CJEU also judged that “Council Directive 2000/78/EC of 27 November, 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability.”. In short, the CJEU recognizes that social rights foreseen in EU legislative instruments are not applicable to beneficiaries (intended mothers) in the context of surrogacy. For the CJEU, the domestic laws of the States allowing surrogacy are the ones competent to rule this issue. The issue of social rights should therefore be treated by the national law of each Member State and it is essential that those States authorizing surrogacy arrangements establish the respective parental rights.

[i] Report on the situation of fundamental rights in the European Union in 2015 (2016/2009(INI)), Retrieved from: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2016-0345+0+DOC+XML+V0//PT.

[ii] COURT OF JUSTICE OF THE EUROPEAN UNION, Judgment of the Court (Grand Chamber), 18 March, 2014 (request for a preliminary ruling from The Equality Tribunal – Ireland) – Z/A Government Department, the Board of Management of a Community School(Case C-363/12). Retrieved from: http://curia.europa.eu/juris/document/document.jsf?text=&docid=151143&pageIndex=0&doclang=PT&mode=req&dir=&occ=first&part=1&cid=1131348, on 21.06.2019.

[iii] COURT OF JUSTICE OF THE EUROPEAN UNION, Judgment of the Court (Grand Chamber), 18 March, 2014 (request for a preliminary ruling from the Employment Tribunal, Newcastle upon Tyne — United Kingdom) — C. D./S. T. (Case C-167/12) Retrieved from: https://eur-lex.europa.eu/legal-content/PT/ALL/?uri=CELEX:62012CA0167, on 21.06.2019.

[iv] Idem, ibidem.

Pictures credits: Untitled by Pxhere.