Surrogacy in the light of European Union law: brief considerations

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 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.
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The latest on the Zambrano front – the Chavez-Vilchez judgment

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by Sophie Perez Fernandes, Junior Editor

Back in 2011, the ECJ delivered a pivotal decision in the Zambrano case. With reference to the Rottmann case, the ECJ held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”

By this criterion are included within the scope of application of EU law situations which, a priori, fall within the competence of the Member States (the so-called purely internal situations). The Zambrano-criterion indeed allows EU citizens to rely on their status as EU citizens against their own Member States of nationality even when they have not exercised their rights of free movement. The immediate consequence of the Zambrano ruling was to preclude Member States (in casu, Belgium) from refusing third country national parents of minor EU citizens a right of residence in the Member State of residence and nationality of those children in so far as such decisions would result in the children having to leave the territory of the Union as a whole.

The subsequent case-law gave a rather narrow interpretation to the criterion, as can be confirmed by the judgments delivered in McCarthy, Dereci, Iida, O and S, Ymeraga, Alokpa and NA. The ECJ held the Zambrano-criterion as a specific criterion as it relates to “very specific situations” in which a right of residence may not, exceptionally, be refused to a third country national without the EU citizenship enjoyed by (minor) Member States nationals being (fundamentally) undermined. It thus follows that any right of residence conferred on third country nationals pursuant to Article 20 TFEU are rights derived from those enjoyed by the EU citizen of which they are members of the family and have, in particular, “an intrinsic connection with the freedom of movement and residence of a Union citizen”.

Without calling into question or reversing this line of jurisprudence, the ECJ seems however willing to revive the Zambrano-criterion in more recent cases, addressing some issues so far left in the open. In CS and Rendón Marín, though admitting the possibility of limiting the derived right of residence flowing from Article 20 TFEU to third country nationals (limitation based on grounds of public policy or public security), the ECJ framed the scope of such a limitation, making its application conditional on a case-by-case analysis and upon respect for fundamental rights as protected by the CFREU, namely Articles 7 and 24(2) CFREU. The ECJ further clarified the scope of the Zambrano-criterion as the ultimate link with EU law for the purposes of the protection of fundamental rights in the Chavez-Vilchez judgment delivered last week.
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