European surrogacy rulings flow throughout neighboring countries

Thailand surrogacy restrictions leave intended parents in limbo
August 26, 2014
Surrogacy does not exploit women
September 11, 2014
Show all

European surrogacy rulings flow throughout neighboring countries

The pendulum has swung in favor towards some European couples and individuals who have had their baby through surrogacy in the United States.

The great news is that a spotlight is shining bright on how it’s in the best interest of a child to be recognized by their parents and be given Nationality in their country.

That may sound simple enough, but it’s been a struggle, and in many ways continues to be a challenge.

In Switzerland, surrogacy is still deemed illegal.

Regardless of this, two gay fathers recently won an unparalleled ruling which made them beam with victory as the legal parents of their child who was born via a surrogate in the states.

According to Mitch Kellaway, an author at The Advocate, “The two St. Gallen-based fathers, whose partnership is legally registered in their home country, chose to have their child through the artificial insemination of a donor egg by one partner’s sperm. Both were listed as fathers on the U.S. birth certificate, after their California-based surrogate mother delivered the newborn and abdicated parental rights.  Kellaway continued, “But when Swiss law still considered the surrogate mother and her husband the legal parents of the child, the two gay fathers petitioned the Swiss national registry for parental recognition, supported by their own local registry.”

In Kellaway’s article, Swiss Gay Fathers Granted Parental Recognition in Landmark Surrogacy Ruling, he went on to say how the Federal Office of Justice appealed the petition.

The request pushed it to St. Gallen’s courthouse in where it recognized the newborn’s birth certificate issued in California.

An item remaining on record at Federal Office of Justice paperwork will be the surrogate’s paternity.

While an appeal may still be issued, to date, none has been filed.

On the heels of this case, is the European Court of Human Rights (ECHR) breakthrough decision which occurred a few weeks ago.

Parenthood in the 21st century is changing not only here in the states, but is rippling across the pond.

The recent ruling in the Mennesson v. France is an excellent example of this.

Before a final decision, there was a movement to prohibit a relationship between a father, who is a citizen of France, and his children born via a surrogate in the United States.  In a press release issued by the Registrar of the Court, it clearly spelled whatever forbidden measures were in place should be cast away.

Regarding the case of Mennesson v. France, “Totally prohibiting the establishment of a relationship between a father and his biological children born following surrogacy arrangements abroad was in breach of the Convention, The European Court of Human Rights….”

In detail is stated that the case, “concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment.”

Ultimately, the ECHR recognized a zero violation of Article 8, which underscores a right to respect for private and family life.  As well, the ECHR deemed there was a violation of this same article in terms relating to the children’s rights for respect and private life.

In addition to the Mennesson family, the Labassee family was also named since they also had children via surrogacy in the United States and had also been fighting to have their children recognized.

The press release pointed out in its summation, “The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr. and Mrs. Mennesson and Mr. and Mrs. Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society.”

What this all means is that the decision of the ECHR could provide a significant change for its 47 member states.  A handful of these countries include France, Germany, Switzerland, Belgium, Sweden, Italy and Spain.  Those who seek surrogacy overseas could be granted parental rights due to a genetic connection. This genetic connection equals citizenship for the children even if surrogacy is deemed illegal in that country.

Like the Switzerland case mentioned earlier, this ECHR judgment has three months for an appeal to the Grand Chamber of the Court.

No appeal has been mentioned at this time which means we are moving in the right direction.