On Wednesday, December 7th, the European Commission adopted—with relative indifference—a proposal for a regulation “on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European certificate of parenthood.” Behind this convoluted formula lies a mechanism designed to facilitate the large-scale legal recognition of surrogate motherhood, which is prohibited in the majority of European countries, but which would de facto have to be recognised by all member states.
The project dates back to 2019: Ursula von der Leyen put it on the table at the beginning of her mandate. For Terry Reintke, who chairs the LGBT intergroup in the European Parliament, the objective is clear—to take advantage of commonly accepted gateways, such as freedom of movement, to advance the cause: “We are pushing for a law, or at least automatic recognition of legal documents between member states. We can use the freedom of movement guaranteed by the treaties to move things forward. That is our entry point on this issue.”, she explained.
The Commission has taken up this argument, justifying its proposal with a concern to preserve both the interests of the child and freedom of movement. As things stand at present, a child born by surrogate motherhood abroad benefits from a valid birth certificate, most often mentioning the biological mother. Things get complicated when it comes to transcribing the birth certificate in the country of destination, that of the commissioning parents, who want to appear at all costs as the child’s real ‘parents’—even if they have no biological link with the child. The Commission wants to facilitate the legal recognition of these children by the commissioning couples—including homosexual couples—in all member states.
The reason given for the freedom of movement is fallacious: by a ruling of 14 December 2021, the court of justice of the European Union already obliges EU member states to issue passports even when they refuse to transcribe birth certificates drawn up abroad in the context of surrogate motherhood. It is therefore not currently necessary to tamper with filiation to guarantee the famous freedom of movement. The real demand lies elsewhere: to obtain the normalisation of the commissioning couples as ‘parents’—whether they are homosexual or heterosexual.
The European commission’s proposal has a very clear, “militant, cultural and political” objective, explains Ludovine de La Rochère, president of the association La Manif Pour Tous, which fights in France against the legalisation of surrogate motherhood: “to make GPA [Gestation pour Autrui; surrogacy] contracts enforceable throughout Europe and to move towards the legalisation of this practice.”
The manoeuvre is based on a semantic reversal: no longer basing the link between children and parents on filiation—which is immediate, obvious, and unquestionable—but on parenthood. Everything thus becomes a matter of choice and construction. The terms are apparently synonymous, but changing one for the other is anything but trivial: in all member states, it creates a right for adults to raise children who are not their own, either biologically or by adoption. The word ‘parent’ is finally emptied of all biological meaning.
Once again, the European institutions intend to override national legislation on a highly sensitive issue. In the French case, for example, the legal conflict is explicit. The proposal is contrary to the French bioethics law adopted on 2 August 2021, Article 7 of which specifies that the transcription of birth certificates of children born from surrogacy must be considered “in the light of French law” and prohibits systematic transcription.
The issue is heavily emotionally charged, which facilitates manipulation based on emotion. Ukraine plays a major symbolic role: until the outbreak of the conflict with Russia, it was indeed the first country to provide surrogate pregnancies for European parents today. The war has led to a clear complacency of national authorities towards this traffic. According to studies conducted by La Manif Pour Tous, the lack of certainty that the commissioning parents will be officially recognised as parents often pushes them to abandon GPA. Facilitating recognition would therefore be a formidable incentive for GPA factories, which make millions of euros every year.
The proposal for a regulation adopted by the Commission is only the beginning of the process since it must then be examined by the Parliament and then by the Council of the Union—all stages that must call for renewed vigilance. The ethical struggle is clouded by an institutional issue: according to the treaty on the functioning of the European Union, measures concerning the family are not the responsibility of Europe. Each state is supposed to decide sovereignly in this matter. This provision undoubtedly thwarts the plans of progressive legislators to push their deadly agenda forward inexorably. It is important to bring the European Union, once again, within the proper limits of its competences.
