EU seems to struggle: Does it want to condemn surrogacy or not? 

The European Parliament is the only democratically elected EU institution, which gives it political legitimacy and authority. It is a co-legislative body of the EU, which means it gets to vote on EU legislation (regulations, directives) together with the European Council. But unlike a typical state parliament, it doesn’t have the power of initiative – this means only the Commission can initiate legislative proposals (the EU being what it is, there are many exceptions to these basic principles). What the Parliament can do, however, is use its political authority to issue non-binding reports on many political, economic and social issues, which are called own-initiative reports. The EU monitor says they are “not regarded as one of the formal decision-making procedures of the European Union, but seen as a significant precursor to legislative procedures being initiated.”

I’d like to ponder on two recent examples of such reports that both dealt with the same topic – surrogacy. In January 2021 the Parliament adopted the Annual Report on  Human rights and democracy in the world and the EU policy on the matter – for the year 2019. One amendment concerned the topic of surrogacy and when asked to vote on it, 429 MEPs voted against the condemnation of surrogacy on 20 January 2021. Only 142 Members of the European Parliament acknowledge this practice must be condemned. Only 87 abstained, but it seems that the whole Parliament struggles with surrogacy.

The EU Parliament reached radically different conclusions on this topic in a very short timeframe. Indeed, the day after this vote, they strongly condemned the practice of surrogacy in a different report. How can MEPs completely change their mind in one day? Does this show how much they care about the practice of surrogacy?. After all, as we say in Belgium: “Il n’y a que les cons qui ne changent pas d’avis” (only fools don’t change their mind).

Both the EU and most of the Member States have always condemned surrogacy. Taking this into consideration, why would a majority of MEPs refuse to condemn it in the Annual Human Rights Report (2019)? This reflects a hesitation from the EU Parliament on something that should be very clear. In the EU Strategy for Gender Equality, the position is crystal clear: The EU “acknowledges that sexual exploitation for surrogacy (…) is unacceptable and a violation of human dignity and human rights” (point 32). What is astonishing is that, in the end, the Annual Report on Human Rights does not mention surrogacy at all.

The polemic in Ukraine due to covid-19 shows how surrogacy can lead to absurd and dangerous situations where human dignity is violated. Indeed, as the MEP Marco Dreosto (ID) raised in June 2020:  “In Ukraine, because of the lockdown, 46 children born to paid surrogate mothers are in legal limbo because their intended parents cannot go there to collect them.” He asked some questions about the role of the Commission in tackling this issue, given that “Through the European Neighbourhood Policy, the EU offers Ukraine a privileged relationship based on mutual commitment to common values such as democracy, the rule of law and human rights”.

The EU Parliament resolution of 17 December 2015 gave a really great answer to this issue in §115. The Parliament “Condemns the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments”.

The EU Parliament was clear: the practice of surrogacy goes against the principle of human dignity. The body of the woman being “used as a commodity”, the woman in herself is treated more as an object than a real subject, a human person.

I believe that in the way the Treaty on European Union is written, human dignity is the first value defended by the European Union (art. 2 TEU). This makes sense to anyone who has read the Universal Declaration of Human Rights or even just the WYA Charter. How can such a threat against this principle be so easily undermined? Above all, this was considered as a matter of urgency.

According to the first article of the EU Charter of Fundamental Rights: “Human dignity is inviolable. It must be respected and protected.”. The principle that “The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights” is a vision shared by WYA and the EU.

The amendment that was suggested was a little “bolder” than what we could read in 2015. It has been drafted in the following terms: The Parliament: “Stresses the need to protect the dignity of every human being; condemns surrogacy as a universal crime that compromises the physical integrity of women and the rights of the child, increasing the commercial exploitation of women’s bodies and reducing the person to a commodity; rejects any improper use of the human body that involves reproductive exploitation for a mere economic or other type of return and calls for greater safeguards for the rights of women, especially for vulnerable women living in developing countries; believes that the practice of gestation for others should be addressed through international legislative instruments for the protection of human rights”.

I can understand that MEPs may have been a little bit shocked by the additional vocabulary used in this amendment. In that case, why didn’t they just delete these new parts and keep the core message that is: surrogacy violates human dignity. Only because a majority of MEPs do not like the political party who suggested this amendment, we went from extended protection against surrogacy – to no protection at all. I believe we should hold the European institutions to a higher standard than that. It is not too much to require consistency and responsibility, rather than changing the phrasing from one report on the other, depending on the perception of the political group that proposed it.

In my opinion, it is worth comparing the two texts mentioned. One one hand, the 2015 EU Resolution, and on the other hand, the suggested amendment. First of all, it is important to highlight that these two texts both (1) condemn surrogacy, (2) acknowledge that it involves reproductive exploitation and use of the human body for financial or other gain / for a mere economic or other type of return, (3) stress the need to pay special attention to vulnerable women in developing countries and (4) this practice shall be prohibited and treated as a matter of urgency in human rights instruments / should be addressed through international legislative instruments for the protection of human rights. I will focus below on the differences these texts entail, and the consequences the use of certain words involves.

As mentioned earlier, the Amendment basically just adds new terms to the 2015 Resolution. First, the suggested Amendment introduces the term “universal crime” to define surrogacy. It goes on to add that surrogacy does not only compromise the rights of women, but also the rights of the child. I think it’s funny that some people advocate for the right to surrogacy in the name of the rights of women, and some others defend the idea that surrogacy goes against the rights of women. They believe, and I agree with them, that condemning this practice is a way to safeguard women’s rights.

I noticed an extremely interesting difference between the two condemnations of surrogacy, on which I take the liberty of lingering a little longer. This difference lies in what we consider to be used / reduced as a commodity when surrogate motherhood is used. The small comparison below shows the exact terms used in these two versions:

§115 (Annual Report HR – 2014)
Used as a commodity:

  • The body of the woman
  • Her reproductive functions

Amendment 24 (Annual Report HR – 2019)
Reduced to a commodity:

  • The person
    + it compromises the physical integrity of women

The problem here lies in the divergence of vision of the human person. In the first column, the body of the human person does not seem to involve the person as a whole. This vision is used among others with the French slogan: “Mon corps m’appartient” (“My body belongs to me”). This generates a vision where our body is only our belonging. If the body is our belonging (in the sense our property), it can be used according to our desires. This is where the core of the disagreement on surrogacy lies.

The second column precisely sees the body as involving the person as a whole. This holistic vision of the human person protects the physical integrity of every human person. The concept of physical integrity means that every person has a right to respect for one’s body. If the body of a person is used as a commodity, then the whole person is used as such. As Mislav (WYA Europe Director of Advocacy) told me: “abuse on the body is abuse on the person”.

Here comes the central discussion about the consent: do we need to condemn the practice of surrogacy in every circumstance? Or do we condemn the forced surrogacy only? Is this practice unacceptable because it goes against human dignity? Or is it left to the free appreciation of each individual? And finally does anyone have the right to freely use their property – their body – as a commodity?

This translates what we so often hear in media, culture and politics: “I am free if I can do what I want to do”. This is not what I believe freedom is. Everyone can acknowledge that what we want to do is not always (sometimes it is) the best option. We must agree that there are some realities on which we cannot close our eyes. I believe that every human being has inviolable and intrinsic dignity. I believe the human body should be respected as being part of the human person seen as a whole. Will these realities be safeguarded by authorities?

WYA gives us guidance about the manner human dignity should be interpreted: “Within human rights law, “dignity” has a precise meaning: the value an individual human being has simply by virtue of being human. This value is intrinsic, inherent, and universal; it does not decrease or increase in proportion to any personal characteristic, experience, or action.”. Did we really come to this point where the Member States are too cold to protect individuals against violations of their dignity? What common values do we have left in the EU if this one “is not so important … after all” ?

I am amazed by the power of words. It is crazy how much we can say about who we are as humans in a very short paragraph of a EU Resolution. How can we deny that there is a place for ideology in these debates? Predrag Fred Matić (S&D), as Rapporteur for the Report on “The situation of SRHR in the EU, in the frame of women’s health” (it’s still in draft stage, expected to be voted on later this year) finished his introductory speech presenting the draft by saying: “Ultimately, we are talking about health and rights, so we are focusing on the emphasis on that, there is no room for ideology in this.”.

In order to contradict this assertion, I’d like to quote two excerpts from the WYA Certified Training Program (CTP), both from Charles Malik, legitimate and credible personality in the defense of human rights: “Whatever you may say, Madam, must have ideological presuppositions, and no matter how much you may fight shy of them, they are there, and you either hide them or you are brave enough to bring them out in the open and see them and criticize them.” Foundations of Human Rights: The Unfinished Business, Mary Ann Glendon (CTP ch. 7)

We require, I submit, the sensitive insight of the poet, the prophet, the philosopher; and I hope we shall call in these types of minds to aid us in our important enterprise. If only jurists, politicians and diplomats work out this bill, I am afraid it will come out as a distorted thing; it will lack vision and unity; it will lack sweeping simplicity. Vision and sensitivity belong pre-eminently to the prophet, unity to the philosopher, simplicity to the poet.” Charles Malik, The Task Ahead (CTP ch. 3)

To conclude, I believe it is high time for the EU Parliament to keep its promises by treating surrogacy as “a matter of urgency” and by condemning it clearly and strongly. As stated in WYA’s White Paper on Surrogacy: “A unified approach is needed more than ever in order to avoid cross-country controversies with huge human rights implications.”

Published: March 3, 2021
Written by Marie-Laure Denoël, an intern at WYA Europe from Belgium