Denmark’s outright ban on adoption in the context of a commercial surrogacy agreement violated the rights of two children born to a surrogate mother, the European Court of Human Rights (ECtHR) has ruled.

The court found by 4–3 that there had been a violation of Article 8 as regards the right to respect for the private lives of the two applicant children, though also held unanimously that there had been no violation of the intended mother’s rights.

Background

The applicants, K.K., C1 and C2, are Danish nationals who were born in 1967, 2013 and 2013 respectively and live in Copenhagen. K.K. is the mother of the other two applicants, who are twins.

In December 2013 a surrogate mother in Ukraine gave birth to C1 and C2 following a surrogacy agreement with the intended parents of the children, K.K. and her husband, who was the biological father. The birth certificates registered K.K. and her husband as the parents. In February 2014 the children were brought to Denmark.

The bench noted that the issues facing the petitioners were that the husband has exceeded the age limit, and the family friend who would act as a surrogate was not genetically related as per the statutory requirements.

In a case heard by the Karnataka High Court on April 21, a single-judge bench has set a test with three conditions to check the eligibility of surrogacy, as one of the parents has crossed the age limit.

The bench of Justice M Nagaprasanna noted that the issues facing the petitioners were that the husband has exceeded the age limit, and the family friend who would act as a surrogate was not genetically related as per the statutory requirements. It proposed a triple test, which included a genetic test, a physical test, and an economic test.

The wife in the case was 45 years old, while the husband was 57 (two years past the age limit for surrogacy). Their son had passed away in a road accident after completing his MBBS, and they found out that there would be a long waiting period to adopt another child. The wife had also earlier had a hysterectomy. In the case of surrogacy, the sister-in-law of the husband was willing to donate the egg cell while a 25-year-old family friend was willing to act as a surrogate to give birth to the child.

The court, further, directed the couple to approach the relevant Surrogacy Board or Authority, which was in turn directed to pass appropriate orders for eligibility certificate within four weeks, bearing in mind the observations of the court.

Toronto couple Isrene Shao and Tommy Mui planned to start a family right away when they got married in 2019 but began having issues conceiving.

“We went to see a fertility doctor and at that point she’s said, ‘Let’s do a pap test.’ I had recently done a Pap test three years prior and it was all clean,” said Shao. “That’s when she did the pap test, and it came out as cancer.”

“That’s how we found it and the scary part was I had no symptoms,” Shao added.

The diagnosis came in 2021. It was revealed that Shao had Stage 3 cervical cancer. She underwent chemo, had to remove her cervix and ovaries. She is now cancer-free but can no longer conceive.

“The first thing we did it is looking to adoption because we still want to be parents through adoption, so we looked into Toronto. We actually also looked into international because the chance of getting an infant in Toronto is very slim,” explained Mui.

Hanna and Ismael have three children via surrogate mothers: "Very happy"

Surrogacy is more popular than adoption in Sweden. The government coalition is divided on how to deal with this new challenge.

Childless Swedes chose surrogacy over adoption to get a child, says Annika Strandhäll. She is an MP for Sweden’s largest party, the Social Democrats, and chairman of Sweden’s Social Democratic Women’s Federation. Strandhäll opposes the practice, likening it to prostitution, trafficking, and organ trade. She, therefore, wants to forbid women to carry a baby for someone else.

Surrogacy became a fierce debate in Swedish society after a celebrity spoke in the media about how he and his husband got a child through surrogacy in the United States.

Currently, Sweden does not know legislation regarding surrogacy. In theory, it is thus possible to ask women around you to carry a child for you altruistically. However, in practice, many Swedes travel abroad to get their child in the commercial sector. Various agencies in Sweden can connect intended parents with clinics abroad. Although there are no official statistics about surrogacy in Sweden, the Swedish Authority for Family Law and Parental Support acknowledges that the number is growing.

And that has to stop, says Strandhäll, whose party ended up in opposition last year after ruling for eight years. She compares commercial surrogacy to prostitution, and does not believe in altruistic surrogacy either. “There aren’t any middle-class mothers who come forward as surrogate mothers”, she says to the Swedish daily Aftonbladet. “It is poor women who are often already exploited and who do this for financial reasons.”

https://www.msn.com/en-in/lifestyle/relationships/a-gay-couple-had-twins-via-surrogate-but-were-almost-forced-to-raise-them-separately-the-dads-sued-to-keep-their-family-together-and-won/ar-AA1eXtTU?ocid=msedgntp&cvid=32b8c98ffda74ac68f1e059c572df615&ei=15

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• Andrew and Elad Dvash-Banks had twins via surrogate. They were conceived using the sperm of each man.
• US immigration refused to recognize the biological son of Israeli-born Elad as an American citizen.

When Andrew and Elad Dvash-Banks showed up at the US consulate in Toronto, they thought getting American passports for their newborn fraternal twins would be relatively straightforward.

The men had decided to move the family to Los Angeles, Andrew's home city. They wanted the boys, who were born via surrogate, to live closer to their relatives, including Andrew's parents and siblings.

In 2019, ZEIT ONLINE reported on a Greek clinic where couples from Germany had children born. Now the police have arrested the doctors.

Greek police have closed a surrogacy clinic on the island of Crete and arrested eight employees, including the facility's two senior doctors. The police in Athens said it was a "criminal organization whose members are said to be guilty of human trafficking and illegal child adoptions," the police in Athens said in response to the case , which is currently causing a stir across the country . ZEIT ONLINE had already reported on the same clinic in the city of Chania in an investigative research in 2019 and uncovered a number of inconsistencies back then. Some media in Greece also accuse the investigators of thisthat they should have intervened sooner. Surrogacy is permitted in Greece under strict legal requirements, but even back then research showed that these were not being adhered to in the now closed clinic.

As the police further announced, in the far-reaching investigations since last December alone, at least "182 cases of exploitation of women in the area of ​​egg retrieval and surrogacy have been registered", and there have been a further 400 cases of fraud in the area of ​​artificial insemination. According to the police, the 73-year-old director and founder of the clinic, whom the ZEIT ONLINE reporters spoke to during their undercover research, together with other employees, set up an international network of "brokers" to bring "vulnerable foreign women" to Greece and "exploit them there as egg donors or surrogate mothers".

The Greek police continue to say that the aim was to meet the “wishes of the organization’s customers from all over the world”. These were childless couples, as well as single or same-sex men who wanted to have children. In 2019, the two reporters from ZEIT ONLINE posed as a childless couple from Germany at the clinic under a false identity and met one of the surrogate mothers. The head of the clinic confirmed at the time that he had already worked “with many couples from Germany”. In Greece, however, surrogacy is only permitted on condition that there is no commercial purpose associated with it. For example, a friend or relative may carry a baby for a childless couple. A prerequisite is also judicial permission for such surrogacy. According to the police, the clinic often forged these.
 

Women housed in 14 controlled apartments

The Acceptability of Surrogacy

Whose recourse to surrogacy is accepted socially and whose is frowned upon, or even legally prohibited, is a chequered terrain. Popular stereotypes have seeped into policymaking, even as social ways of family-making go beyond conventional usages of reproductive technologies.

Surrogacy is now a legitimate mode of reproduction, at least as far as heterosexual married couples, or single individuals are concerned. News of celebrities having children via surrogacy – be it Shahrukh Khan or Amir Khan a decade ago, or more recently Priyanka Chopra Jonas and Nayanthara – has contributed to this ‘mainstreaming’ of surrogacy. Popular culture representations in films and other forms of content on OTT platforms also reflect this mainstreaming.

Surrogacy arrangements are located in the milieu of infertility and other physiological conditions that might prevent carrying a pregnancy. Like in the case of Assisted Reproductive Technologies (ARTs), anxieties and changing perceptions about understanding infertility have contributed to a deepening of their social acceptance. Other than these conditions, single individuals and queer couples have also found surrogacy as a viable mode of having their ‘own’ child(ren). In their context, using ARTs and surrogacy facilitates something that biology renders unattainable. 

The sensationalist attention towards the process and its consequent social acceptance piggybacks on a laudatory view of technological assistance in case of ‘infertility’, often presented as a ‘treatment’ for a ‘disease’. A growing fertility treatment industry in the private sector, that resorts to aggressive marketing and advertising, has mediated the changing understanding of childlessness from a social condition stigmatised in a patriarchal context to its perception as a disease that can be treated medically, as I have argued elsewhere. In this context, the public health expert Imrana Qadeer insightfully observes that “least sensitive cultural norms that contribute to women’s anxieties, medicalisation of her life and professional control of her reproduction” are all important axes through which one can analyse “the commercialisation of infertility” (2010: 16). 

Surrogacy could soon be classified as a form of human trafficking by the EU.

At its meeting on October 5th, the EU parliament’s joint committee on women’s rights and civil liberties added surrogacy to the list of crimes targeted by the bloc’s directive on preventing human trafficking.

The directive, put in place in 2011, is being revised at a crucial moment when parallel legislation on rules recognizing parentage risks facilitating surrogacy within Europe.

Most EU member states have bans on surrogacy in place, but several do permit altruistic surrogacy or simply have not regulated it. On the edges of the EU though, in countries from Ukraine to Georgia, a booming commercial surrogacy industry exists whose clients often come from within the EU. Additionally, Ukraine, well-known for its surrogacy industry, is seeking fast-track entry into the EU.   

“By classifying surrogacy as a form of human trafficking, the European Union takes a substantial step toward preventing the exploitation of women’s bodies and the commodification of children,” the European citizen’s initiative One of Us said in a statement. “This marks a significant stride in effectively safeguarding the most vulnerable and actively combating the commodification of human bodies.”

Pro-life organisations and politicians laud the adoption of a draft against human trafficking within the European Parliament. “Reproductive exploitation” is on its way to becoming an EU-wide crime.

To combat human trafficking and help its victims, the Women’s Rights and Civil Liberties committees within the European Parliament adopted a draft position on revised rules. Several Members of the European Parliament (MEPs) wanted to include “surrogacy for the purpose of reproductive exploitation” in that draft. In a vote on Thursday, that amendment was approved with a solid majority.

While the text leaves room for interpretation, politicians and pro-life organisations react delighted to the result. The French MEP François-Xavier Bellamy of the centre-right European People’s Party Group (EPP) tabled the amendment. He calls the approved draft “a very important step to protect the most vulnerable and to fight against the commodification of bodies.”

However, Bellamy’s amendment attracted wider support than just from conservative quarters. Several socialist MEPs also supported the amendment.

One of Us, the European Federation for Life and Human Dignity, called the voting result “groundbreaking.” According to Marina Casini, the president of the pro-life NGO, this decision “means that the weakest will be more protected in the European territory.”