"Take the example of Lithuania, where surrogacy has been declared contrary to the dignity of women and children"

Claire de La Hougue is a doctor of law and associate researcher at the ECLJ. She is the author of numerous legal articles on bioethics, and participated in the drafting of the study which served as a basis for drafting the resolution adopted by the Lithuanian parliament. She has intervened in the European Parliament and the Council of Europe on surrogacy.

While some in France would like to take advantage of the revision of bioethics laws to have surrogacy (surrogacy) accepted and that the French courts increasingly accept the fait accompli when it is practiced in Abroad, Lithuania protests against surrogacy, declaring it radically contrary to the dignity of women and children.

The Lithuanian Parliament, called Seimas, adopted on June 25 by an overwhelming majority of voters (54 against 4, with 3 abstentions), a “Resolution condemning all forms of surrogacy”. Written by Christian Democrat deputies, this text received the support of members of other parties, notably Green and Social Democrats.

The resolution first notes that this practice is contrary to many international treaties: those which prohibit the sale of children, trafficking and slavery, those which guarantee the rights of women, in particular against the exploitation of their reproductive organs, those which protect children's rights or which govern parentage, adoption or even biomedicine. She also recalls several European Parliament resolutions and international reports which underline the attack on the dignity of the women and children concerned, treated as goods, as well as the high risks of human trafficking associated with this practice. Finally, the Lithuanian Parliament calls for a ban on surrogacy, also relying on Lithuanian law.

Parliament stresses the difference between adoption, carried out in the best interests of the child and intended to remedy an existing painful situation, and surrogacy, which is centered on the desire of adults to "have" a child. child conceived for this purpose, and which involves deliberately ending a family relationship. He notes that the dissociation of motherhood between its genetic, biological and social dimensions as well as the multiplication of claims on the child that it allows lead to disorder and legal insecurity.

The Seimas further observes that all attempts to regulate surrogacy have only encouraged reproductive tourism and the exploitation of women in poor countries. He insists that this practice - whether overtly commercial or allegedly altruistic - constitutes a modern form of slavery and human trafficking and cannot be justified either legally or ethically.

The Parliament concludes that only the complete and final condemnation of all forms of surrogacy can make it possible to eliminate this practice, which violates human rights and dignity. He therefore calls on the President of the Republic, the government and the Minister of Foreign Affairs to condemn all forms of surrogacy. It further calls on them to take effective measures at European, Council of Europe and European Union level to ensure that this practice is prohibited as a form of trafficking in women and children, and that States are free. to refuse to recognize false filiations established abroad on the basis of surrogate motherhood. The Seimas also calls for heavy fines to be imposed on those who take part in international surrogacy contracts, including medical and legal agencies and intermediaries.

Internationally, the Lithuanian Parliament is making very concrete proposals. He recommends submitting to the Secretary General of the United Nations two amendments to existing treaties. By the first, the Optional Protocol on the sale of children, child prostitution and child pornography would expressly recognize that surrogacy constitutes a case of the sale of a child. The second would include in the Convention on the Elimination of All Forms of Discrimination against Women the obligation to take all measures to prohibit this practice. Finally, MEPs ask the Council of Europe to open an investigation into the violation by member states of their commitments under the European Convention on the Legal Status of Children Born Out of Wedlock.

For the drafting of this resolution, the Lithuanian deputies relied on a study carried out by the ECLJ entitled: What ways of international law to prohibit surrogacy? and initially published in the work Le mariage et la loi, protecting the child published by the Institut Famille et République (Paris 2016),

It is the first time that a European national parliament has become so aware of the seriousness of the violations not only of international law but even more of the rights and dignity of women and children induced by surrogacy and that it proposes concrete measures to ban this practice.

Unlike the Hague Conference which strives to have surrogate motherhood accepted by claiming to provide a framework for it, the Seimas understood that there is no difference in nature depending on the methods adopted and that the framework does not makes the problem worse in poor countries.

The time seems to have come for international action to ban surrogacy. Indeed, for several years, many countries providing children have taken severe measures to prohibit or at least limit this practice. Different international bodies have already alerted to the rights violations inherent in it. The United Nations special rapporteur on the sale and sexual exploitation of children, Madame de Boer-Buquicchio, devoted her 2018 report to the sale of children in the context of surrogacy. The European Parliament had raised the problem in 2011 and has condemned several times since this practice which constitutes an exploitation of the woman's body and her reproductive organs. For its part, the Parliamentary Assembly of the Council of Europe, despite intense lobbying and after long debates, rejected in 2016 a draft report and recommendation which would have had the effect of admitting it.

The concerns of Lithuanian MEPs also converge with that of their counterparts from other European countries. Thus, following the scandal of "surrogacy babies" stranded in Ukraine, Swedish deputy Alexander Christiansson submitted at the end of June to the Committee of Ministers of the Council of Europe a written question, mentioned above, based on the European Convention on the legal status of children born out of wedlock, a convention which provides that "the maternal filiation of any child born out of wedlock is established by the sole fact of its birth", as for the children of a married woman, but Ukraine registers the commissioning woman as mother on the birth certificate, in violation of European law.

Just recently, on July 1, 2020, the information mission on the adaptation of French family policy to the challenges of 21st century society presented a report to the National Assembly (n ° 3168). MEPs call for international action to ensure that countries which allow surrogacy do not grant the benefit of this mode of procreation to nationals of countries which prohibit it, as Manuel Valls then prime minister had envisaged, then a general ban on this practice first through bilateral agreements, then in the form of an amendment to an existing convention, referring to the proposals of the ECLJ study. They underline the existence of a certain consensus at the European level since a large part of the neighboring states of France - Germany, Spain and Italy - prohibit surrogacy.

At a time when, despite an undeniable awareness at the international level, many governments remain undecided, given the strong pressures undergone and the extremely lucrative nature of this market, the expression of a strong political will can be decisive for abolish surrogacy. Let us hope that the movement thus initiated will involve other European countries and will lead to the eradication of this practice, just like slavery.