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Chapter 26 - Gestational Surrogacy in the Grand Duchy of Luxembourg

Published online by Cambridge University Press:  13 October 2016

E. Scott Sills
Center for Advanced Genetics, California
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Handbook of Gestational Surrogacy
International Clinical Practice and Policy Issues
, pp. 189 - 195
Publisher: Cambridge University Press
Print publication year: 2016

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For example, Genesis, Chapter 30: “And when Rachel saw that she bore Jacob no children, she envied her sister; and she said to Jacob, ‘Give me children, or shall I die!’. And Jacob became very angry with Rachel and said: ‘Am I in the place of God, who has withheld from you the fruit of the womb?’ Then she said, ‘Here is my maid Bilhah; go in to her, that she may bear upon my knees and that I too may have children through her.’ ” Thus children conceived will be considered to be the offspring of Rachel and Jacob. See also Genesis, Chapter 16: “Now Sarai Abram’s wife bore him no children. She had an Egyptian slave-girl whose name was Hagar, and Sarai said to Abram, ‘You see that the LORD has prevented me from bearing children; go in to my slave-girl; it may be that I shall obtain children by her.’ And Abram listened to the voice of Sarai.”
View 2001.1 of the National Commission for Ethics on Medically Assisted Reproduction, pp. 84 and 96.
Bill 6568 of April 25, 2013 on parentage law. This bill has not been adopted yet and thus is not enforceable in Luxembourg. However, surrogacy agreements are not allowed for the reasons exposed in this section.
See Article 363 of the Luxembourg Criminal Code: “Would be punished by imprisonment of five to ten years, those who are guilty of concealing a child, substituting one child for another or passing off a child as the offspring of a woman who did not give birth to him or her” (“Seront punis de la reclusion de 5 à 10 ans, les coupables de suppression d’un enfant, de substitution d’un enfant à un autre ou de supposition d’un enfant à une femme qui ne sera pas accouchée”).
In theory, it is reasonable to say that this provision (Article 363 of the Criminal Code) may be applicable to a civil registrar or a midwife who enabled a child to be passed off or concealed. Within the context of a surrogacy agreement, such provision may be applied to any medical professional or, again, to the civil registrar even if this latter situation seems to be unlikely.
Superior Court of Justice, November 11, 1957 (“l’élément essentiel de la supposition d’enfant réside dans l’introduction d’un enfant dans une famille à laquelle il n’appartient pas, alors que la suppression d’enfant consiste dans le fait criminel de supprimer la preuve de l’état civil d’un enfant, sans qu’il y ait attentat à la vie de cet enfant”).
For example, in Greece, where the law allows surrogacy arrangements, both the intending mother and the surrogate mother must have their habitual residence in Greece. The United Kingdom has a similar requirement: one or both of the intending parents must have their residence in the United Kingdom. However, some countries offer a permissive legal system without any requirements regarding the habitual residence of the intending parents. For example, this is the case for India, Russia, Thailand, and the United States. In India, this permissive legal system is a result of a national economic policy whose aim was to encourage medical tourism and, consequently, reproductive tourism. On this issue, see the study by the Centre for Social Research in India, Surrogate motherhood – ethical or commercial, March 2012.
However, it is impossible to determine the number of clinics or agencies offering surrogacy-related services. On this question, see the International Federation of Fertility Societies, IFFS Surveillance 2010 Survey. Between 2007 and 2010, the number of agencies and clinics had risen from 59 to 105. For example, there are approximately 500 clinics and agencies offering surrogacy-related services in India and approximately 460 in the United States.
That is, see Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, by Usha Rengaghary Smerdon. See also ABC News Article, September 28, 2007, Cheaper overseas: surrogate mothers. according to which an in vitro fertilization process only costs US$6000 in India; British couple desperate for children travel to India in search of surrogates, The Guardian, March 20, 2006; and Russian surrogate moms attract foreigners, Moscow Times, September 26, 2012,
In practice, it seems doubtful that a surrogacy agreement may be altruistic because there are expenses to cover, and in certain country, surrogacy has become a real flourishing market.
See, for example, the case of Jon Balaz and Susan Anna Lohlad, a German couple whose twins born following a surrogacy agreement were stateless citizens having neither German nor Indian citizenship. After a two-year legal battle, the parents were allowed by German authorities to leave India and take their children home. The German authorities agreed to provide the necessary travel documents for the twins after Jon Balaz and his wife went through the adoption process. See also the Baby Manji case, in which a Japanese couple used a gestational surrogate mother but divorced before the child was born. The ex-wife did not want the child anymore, but the ex-husband did. However, in 2008, according to Japanese law, surrogacy is not allowed, and under Indian law, it is impossible for a single man to adopt. Finally, the child was allowed to leave India for Japan in order to avoid a diplomatic crisis.
See Convention of New York on the Rights of the Child of November 20, 1989.
Since 1989 and ratification of the Convention on the Rights of the Child of November 20, 1989 (New York Convention), the international conventional system has introduced the concept of the “child’s best interests.” The New York Convention expressly affirms in six of its articles the concept of the “child’s best interests.” The concept is also at the core of the following conventions: The Hague Convention on Protection of Children and Cooperation of Intercountry Adoption of May 29, 1993, the European Convention on the Exercise of Children’s Rights of January 25, 1996, and the Charter of Fundamental Rights of the European Union of December 7, 2000.
According to Article 8 of the European Convention on Human Rights, “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”
For example, in France, Decision no. 370 of April 6, 2011 (Pourvoi no. 10-19.053), Première Chambre Civile, Cour de cassation (the highest court in France), has stated that “it is justified, on the basis of the French International Public Policy, to refuse to transcribe a foreign birth certificate established by virtue of a foreign judicial decision once this decision has provisions that infringe fundamental principles. It is contrary to the principle of inalienability of the human body to let a surrogacy agreement produces its effects in France even if this agreement shall be lawful in accordance with the Law under which it has been concluded.” See also Decision no. 371 of April 6, 2011 (Pourvoi no. 09-17.130), Première Chambre civile, Cour de cassation (Mennesson case). In the Netherlands, the courts have refused to recognize legal parentage established in foreign birth certificates where no mother is mentioned in the birth certificate.
See European Court of Human Rights, Mennesson v. France and Labassée v. France, June 26, 2014. The European Court of Human Rights has decided that totally prohibiting the establishment of a relationship between a father and his biological children born following surrogacy arrangements abroad was in breach of the convention: “The effects of the refusal to recognise a parent–child relationship in French law between children born following surrogacy treatment abroad and the couples who had the treatment were not confined to the couples, but also extended to the children. Their right to respect for their private life, which implied that everyone should be able to establish the essence of his or her identity, including his or her parentage, was significantly affected. There was therefore a serious issue as to the compatibility of the situation with the children’s best interests, which must guide any decision concerning them.” See also European Court of the European Rights, January 27, 2015, Paradiso and Campanelli v. Italy. The European Court of Human Rights held that there had been a violation of Article 8 of the convention. Public policy considerations underlying Italian authorities’ decisions could not take precedence over the best interests of the child. See also European Court of Human Rights, July 8, 2014, D.and others v. Belgium. See also pending application, Laborie and others v. France, regarding the impossibility for a French couple to obtain recognition in France of the parent–child relationship between them and their children born in Ukraine through a surrogacy arrangement.

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