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Substitute gestation

Surrogate motherhood is a fairly unknown current trend. There are many people in Europe who wish to have children but due to various circumstances are unable to become neither biological nor adoptive parents. For the most part, single people, unmarried couples, homosexual couples or older married couples are considered less than ideal as adoptive parents not only by government agencies in their country of residence but more so by the countries from which they wish to adopt. These people have realized that they can fulfill their wish by taking a different route via surrogate motherhood where a woman agrees to carry a child for other people. Surrogate motherhood in exchange for compensation is a legal business transaction in some countries (e.g. United States, Ukraine, or India) while in most EU countries it is not except in rare cases but without any payment. The International legal issue is: what happens when residents of an EU state such as Spain or France where surrogacy for compensation is prohibited, hire a surrogate mother in a country where it is legal? Generally in these countries such as Spain, recognition of such parental filiation was denied as going against public policy. An example of this is where the Supreme Court of Spain in a decision dated 6 February 2014 denied recognition of parental filiation by means of a surrogacy which took place in California (United States) by a homosexual couple from Valencia reasoning that the recognition of such filiation would be prejudicial to the minor because it undermines his dignity and turns him into a commercial object.

Nevertheless, the European outlook has dramatically changed as a result of the European Court of Human Rights’ decision in Affaire Mennenson c. Francia, 26 June 2014, where the High Court held that the denial of recognition of the filiation tie between parents and children violated their right to privacy and family under art.8 of the ECHR and in fact what is actually in the best interest of the child is the recognition of such filiation.

This paper seeks to analyze the issue via the legislation of EU member states, judicial decisions on the recognition of filiation by surrogacy in foreign jurisdictions and foreseeable amendments so that the legislatures of EU member states may follow suit.