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The Council of Europe rejects the report on surrogacy

Publié le : 4 October 2016

The Council of Europe is examining the report on gestational surrogacy today. It will be presented by the European deputy, Petra de Sutter (cf. La GPA n’est pas inéluctable (surrogacy is not unavoidable)) and Conseil de l’Europe : La GPA de nouveau en question (Council of Europe: surrogacy questioned again). A controversial report, already rejected. An obstinacy which reflects a will to force it through regardless, but hasn’t yet reached its goal.

Claire de la Hougue, lawyer and researcher associated with ECLJ, decrypts for Gènéthique what is at stake in this report.


Surrogacy is a contract that plans the conception, gestation, abandonment and giving away of a child by a woman to one or several people.

May it be commercial or for free, this practice is a violation of human dignity as it treats people like objects, like means of satisfying one’s desire.


Surrogacy violates the dignity of both women and children


Surrogacy uses the woman as a means, a tool allowing one to fulfil the dream of having a child. Even in so-called altruistic surrogacy, the surrogate mother receives a “compensation” that can be as much as 2 to 10 times higher than the payment received by a “commercial” surrogate mother in another country. Besides, in the rare possibility in which the mother truly has volunteered, the result is that everybody gets paid apart from the mother: doctors, lawyers, insurance companies, and any other intermediate who earns money thanks to a so-called altruistic form of surrogacy.


The child, however, is the object of a contract, it is conceived, born and delivered to order, as the fulfilment of a contract. Given or sold, it is disposed of as an object one could become the owner of. However, in international law as in French law, a situation in which one or all of the powers attaching to the right of ownership are exercised over another person is called slavery. The person is being disposed of. That it be for money or not makes no difference. The intentions of the people in charge make no difference either.


To only ban commercial surrogacy would be like agreeing to the principle. However, this very practice violates the dignity of women and children whatever the conditions may be, because they are treated as objects, means to satisfy a desire.


Surrogacy even allegedly altruistic cannot be accepted. It would be like agreeing to slavery, to trafficking people or selling children under certain conditions and that these practices can be ethical if they are well regulated.


Surrogacy cannot be ethical because it is intrinsically contrary to human dignity.


To bow to fait accompli when it is done in a foreign country using the child’s interest as a pretext would be admitting that this practice is acceptable with regards to the dignity of those people. It would be encouraging fraud in countries that don’t think like us.


Whatever way one puts it, and even when using children’s dignity as an argument, it is always about trying to validate a practice which, in itself, is a violation to human dignity,


An inacceptable procedure


Besides, the procedure is unacceptable. On March 15th a majority of the deputies of the Commission in charge of the case voted against a first favourable draft report concerning surrogacy, presented by Petra de Sutter. She made another attempt at passing it in June, and again today.


The draft strongly condemns commercial surrogacy to better put forward an alleged “altruistic form of surrogacy”. In the same hypocritical way, it calls upon the protection of children’s rights to actually guarantee the adults’ rights over the children born by surrogacy and put the states in front of a fait accompli.


The rapporteur, Petra de Sutter, is a gynaecologist who practices surrogacy at the hospital of Grand. She works with a commercial surrogacy company in India. Many deputies having denounced the conflict of interests, the social affairs Commission should have settled the question by secret ballot, as provided by law. However, on January 27th, 2016, bending the procedure, the vote was replaced by a vote by show of hands, which, by a narrow majority, decided not to examine the question of the conflict of interests.


.After the vote of March 15th rejecting Sutter’s report, several deputies asked for the procedure to be abandoned or handed over to another rapporteur. This request also was rejected.


Besides, the confidentiality concerning parliamentary work has been reinforced. Quite incredible, seeing as it should be an example of transparency and “open democracy”: the project of report and resolution is confidential, the discussions are held behind closed doors, people unfavourable to surrogacy are not auditioned. Don’t try to get any more information, it is strictly confidential…


In December, the European Parliament condemned surrogacy. The council of Europe must also ban substitution maternity whatever the conditions may be.


A contract of which the object is a human being, a child of whom the abandonment by its mother is planned, of whom the filiation is willingly blurred cannot find any legal recognition by states that claim they respect human dignity and the rights of men.


Today, the Council of Europe used a very unusual method: after having rejected the report and the draft resolution, the deputies decided to examine the draft recommendation annexed to it. This project, amended, was however adopted. It will be debated upon in October during the next session of the parliamentary Assembly of the Council of Europe.

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