Teaching card: N°1
SURROGATE
MOTHERHOOD
I – Short presentation
Definitions
Other common expressions
The term "surrogate motherhood" refers to a set of
situations in which a woman, the surrogate mother, agrees to carry and give birth to a child at the
request of a couple.
Gestational surrogacy; uterus hire; renting a uterus;
offshoring pregnancy; farming out pregnancy. To designate the woman concerned, we speak of "surrogate
mothers", "gestational mothers", "birth mothers", etc.
Why take recourse to this practice ?
Two different situations


Insemination, usually artificial, of an egg cell of the
surrogate mother with the sperm of the man of the
requesting couple, or possibly of another man. The
woman agrees to carry the child conceived in her
womb and to give it at birth to the couple who have
requested it.¨
The transfer of an embryo conceived in vitro into
the uterus of the surrogate mother. The embryo is
usually conceived from the gametes (egg cells and
sperm) of the requesting couple. However, a third
party may possibly provide either the sperm or the
egg cells.
Gestational surrogacy allows women who suffer from
uterine diseases that prevent them from carrying a pregnancy to term to fulfill their desire to have a child, usually from their own gametes. Moreover, for male homosexual couples, recourse to gestational surrogacy is the
only way to give birth to a child.
II – What does the law say ?
In practice, the rules of parenthood nevertheless require
the surrogate mother to give up the child at birth and
the requesting couple to follow the procedure for adoption.
In Belgium
There is no specific law that aims to regulate gestational surrogacy, and there is no specific criminalisation
of this practice, which therefore does not constitute a
criminal offence as such. Nonetheless, to conclude that
there is a "legal void" is to overlook certain rules of civil
law that pertain to this matter. For example:
In other European countries
Gestational surrogacy is tolerated, in the absence of
specific legislation, in Denmark, Finland and the Netherlands. It is illegal in France, where the Civil Code has declared contracts for surrogate motherhood to be null
(Civil Code, art 16–7). The intermediaries—and possibly
the requesting couples (if incitement to abandon a child
is proven on their part)—risk imprisonment and fines
(Criminal Code, art 227–12 and 227–13). In other countries, the practice of surrogate motherhood is likewise
prohibited by specific texts (in Spain, Italy, Portugal, Norway, Sweden, Switzerland, Germany and Austria). Many
of these laws impose criminal sanctions on intermediaries and/or on physicians. However, surrogate motherhood is legally authorized and regulated in Great Britain
and Greece.

the woman who gives birth to the child is legally
considered the child’s mother (Civil Code, art 312);

the child can only be entered into the civil register
under the name of the mother (Criminal Code, art
363);

the husband of the woman who gives birth is presumed to be the child's father (Civil Code, art 315
and following);

the human body is unavailable, that is to say, it
cannot be the object of an agreement (Civil Code,
art 1128).
Despite these rules, gestational surrogacy is tolerated.
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II – Critical Assessment
Public and private interests
What is the legal validity of contracts for surrogate
motherhood?
The comments and questions listed below show that
gestational surrogacy is a practice that is not in the private or the public interest, and so also for this reason
cannot be endorsed by Parliament.
Through close analysis of the services that constitute
the core of these contracts, many legal experts have concluded that the contracts are null, due mainly to the illegality of their purpose, that is to say, the two commitments made entered into by the surrogate mother.
The commitment to supply her reproductive function
violates the principle of unavailability of the human body
in that it concerns an essential element of being a woman: it falls within the scope of what she is, as a person,
and not within the scope of things that she possesses
and of which she may freely dispose. Declaring surrogate
motherhood contracts to be valid would amount indirectly to considering a human being to be a thing, which
contradicts the principle stated above. Furthermore, it is
easy to see that a commitment whose goal is to give up a
child is just as illegal, and indisputably so, since it is an
act of disposition whose object is a person, the child.
 Surrogate motherhood distorts the institution of
adoption, whose purpose is to resolve an unfortunate state of affairs in the best possible way, that is, to
"give a family to a child", but not to "give a child to a
family" after deliberately creating the circumstance of
abandonment.
 Surrogate motherhood inevitably carries a risk of fo-
menting the exploitation of certain underprivileged,
poor or easily influenced women, whether the surrogacy is for payment or not.
 Surrogate motherhood implies both a division of
motherhood from fatherhood and confused
parenthood. Consequently, the child could have up
to five parents: a biological mother, a biological father,
a surrogate mother, a legal mother and a legal father.
Allocating parenthood or parental responsibility in this
fashion, by means of a legal transaction between private individuals, violates not only human dignity, but
also the bases of social order. Moreover, what should
one answer if the child, having attained the age of reason and in search of his or her identity, happens to
ask, quite rightly, who his or her parents really are?
Dignity and instrumentalisation of a person
The principle of human dignity, which underlies the
essential distinction between persons (legal subjects)
and things (legal objects), opposes any form of instrumentalisation, objectivisation or exploitation of a person,
who can never be seen only as a means to serve other
people's needs or desires. In more than one way, the
practice of surrogate motherhood appears to contradict
this fundamental principle.
 Surrogate motherhood completely ignores the exist-
ence of the intrauterine relationship that develops
between the surrogate mother and the child. Disregard for the intimate relationship of pregnancy accentuates for both mother and child the feeling of
"abandonment", whose adverse immediate and long
term psychological consequences are well established.
The pregnancy runs its course as if it were not an integral part of motherhood.
Thus, although the surrogate mother generously and
selflessly offers her services, objectively speaking, she is
reduced to playing a purely instrumental role since, on
the one hand, she can only experience her pregnancy as
purely functional and not as an event involving her
whole being, and since, on the other hand, by virtue of
her contract and to fulfill the needs of others, she must
renounce what she is: the mother of the child she is carrying. As for the child that the surrogate mother contracts to give up at birth, clearly, it is objectively considered to be a thing to be delivered under the contract
between the surrogate mother and the requesting couple.
 What will happen if the child, the object of the con-
tract, does not satisfy the requesting couple, for example, because he or she is handicapped? What if the
contract is breached or if the requesting couple separate during the pregnancy? Should one grant to a surrogate mother the "right to abort" so that she may
withdraw from her engagement? Also, does the husband of the surrogate mother have a right to be heard?
This fact sheet, published in 2011, is necessarily concise.
For more complete information, please consult the website www.ieb-eib.org.
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