Presumption of Motherhood on Crossroad of Surrogacy Arrangements in Eu

Abstract

The presumption "Mater semper certa est", that is known from Roman law, indicates that the mother is always certain as she was traditionally seen as the progenitor and the one who had given birth. However, traditional view on motherhood is lately changing due to new procreation techniques that made the content of motherhood depended on contractual arrangements and opened the possibility to differentiate the progenitor from the person who has given birth. The surrogacy motherhood is considered as one of the new procreation techniques that made possible for single persons and couples with or without fertility problems to become parents. However, surrogacy motherhood made the notion of the mother interchangeable and depended on various arrangements between adults. It all represents a serious threat to various children's rights including their right to know their origin and to be cared for by parents. Many Member States of the European Union (EU) realized the dangers of surrogacy arrangements and, in pursuit of the best interest of the child, enacted legislation to ban or restrict surrogacy. However, cross-border surrogacy arrangements, that are nowadays popular and untraceable, made possible to bypass those domestic legislations. The absence of any formal consensus within the EU on how to address the problem of cross-border surrogacy represents a serious threat to the protection of children's rights.

Families formed through assisted reproductive technology: Causes, experiences, and consequences in an international context

“…For example, surrogacy is allowed in the USA, but is not permitted in many European countries ( Allan et al, 2019 ). Some countries have secured the right of the child to know his/her descent, while others have not ( Čulo Margaletić et al, 2019 , Harland, 2021 , Igareda González, 2020 , Mulligan, 2020 ). It might not be possible for a child to trace back his/her origin depending on the country where s/he was conceived, and on whether donor gametes or a surrogate was involved.…”