Research Paper – 2019
It is now possible to die and give birth years after death. Naturally, it is possible for a man to be genetically the parent of a child up to 9 months after his death; however, this is not naturally possible for a woman. Nonetheless, the advancement in technology makes it simple to “give birth” after death with the use of a surrogate mother, conservation of gametes or embryos. This form of transhumanism promotes futuristic visions about the transgression of human biology but tends also to infringe some human rights in their current conception. In cases of surrogacy or posthumous reproduction, the right to respect for private and family life is often at the heart of the legal dispute between member states and families.
In the case discussed in this essay, the rights of different individual would be analysed in the light of article 8, as wide range of rights arise from this particular right. Those rights should be balanced in the best interest of the concerned child.
In the first part, the rights infringed by the grand-parents of the grandson will be highlighted, but particularly what rights would the grandchild be deprived of. (I) The second part will underline the rights or supposed rights of the other individual involved in the birth of the child, including the commissioning parents in this case the grandparents, the gamete donor and the surrogate mother. (II) In a final part, the rights of each party should be taken into consideration and in accordance to the European Court of Human Rights case law, a suggested solution could be offered to the UK government which would be in the best interest of the child. (III)
I) Father and son’s rights infringed by the commissioning parents
The rights of both father and son will be discussed in the first part. As one of the main protagonists in this case, the father, not alive at the time of conception, did not consent to it (A) and the child has been deprived from the date of conception of the perspective of a biological father. (B)
- The absence of the father’s consent
In the discussed case, the sperm of the father has been collected postmortem at the request of his parents who are the grandparents of the male child born a few years later. The grandparents, referred as the commissioning parents from now on, acted twice without the biological father’s consent. The first was at the time of the collection of the father’s sperm and the second time was at the conception of the child.
As indicated in the case, the doctor did not receive a formal consent from the “donor”, biological father. Egg or sperm donation follow a procedure which required the formal consent of the donor. The donor would give consent to use his or her gametes and would therefore consent to the possibility of fetus conception. Therefore, without the consent of the father, his right has been breached. The father should have the right to respect to private and family life, this also include the right to reproduction but also to not be a parent. It could be expected that the father would not have agreed to have a son after his death and without also consenting to the conception procedure. Indeed, the European Court ruled the circumstances of giving birth form part of one’s private life, and the form of conception would therefore be also part of one’s private life. This could be restricted by health issues but it does concerned the circle of private life. However, the father might have wanted to have a child first via a natural procedure.
This case seems also to raise an ethical issue in regards of bioconservatism. Postmortem conception is not naturally possible and seems to go against the human biology.
The current case could also raise concern regarding the actual motive of the commissioning parents. As the commissioning parent wanted to have a son, they could have wanted to ‘replace’ in some way their dead son, with a newborn grandson.
- The rights of the child infringed from the day of conception
The commissioning parents also infringed the child’s rights. By proceeding to the conception of a child postmortem, the commissioning parents have deprived the child from a ‘normal’ family life, including being raised by his biological parents but this could also incured some uncertainty in his family’s life.
The European Court of Human Right recognised the right of mutual enjoyment between children and parents. The relationship between a child and a parent constitutes a fundamental element of family life, this principle of mutual enjoyment is confirmed by the court in different cases law.
There are two main options which would later be detailed regarding the child. The United Kingdom (or later on the European Court of Human Rights) could decide to recognise the grandparent (the commissioning parents) as legal parent of the child or to place the child for adoption (could also allow the surrogate mother or the donor mother to adopt the child). Either way, the child could not have a normal family life as his genetically father has been deceased at the time of his birth.
In both cases, fundamental rights have been infringed by the birth of the child. However, it would be interesting to have a closer look to the grandparents and the “other” parent of the child.
II) The rights of other family or potential family members
In this case, the commissioning parents were as well grandparent, it is therefore interesting to evaluate their rights in those positions.(A) At the opposite side of the spectrum, there are the surrogate mother and the gamete donor, the biological mother in this case. Their rights involved would be discussed further. (B)
- The commissioning parent and biological grandparents’ rights
As the son of the commissioning parent was the donor, the commissioning parents are genetically linked to the child, being the biological grandparents of the child.
On one hand, the grandparents are technically not the parent of the child, they can not enjoy the same rights has the genetically father, their son. According to the European Court of Human Rights, close family relationships such as grandparents and grandchildren, are included in the conception of family life. Indeed, grandparents play in some cases a major role in the child’s family life. Nonetheless, this right can be entails by the responsible parent. Therefore, the father or the mother of the child can forbid the creation of a relationship between the grandparents and the grandchild. The opposite is however not allowed, grandparents have no right to forbid the relationship between a grandchild and his or her parents. Due to the weaker biological bond, the relationship between grandparents and grandchildren are not as protected as the relationship between parents and children.
On the other hand, the grandparents in this case acted as commissioning parents. If they acted as commissioning parent, it could be argued that they benefit from the same rights of a biological parent. However, commissioning parents are not parents by nature, this status must be recognised by the State. Thus, if this is the case, the commissioning parent could also argue to the respect for their family right with the same title as the biological parents.
It is important to highlight the child has reportedly been living with his grandparents in the UK. The Court but also many countries recognised family ties de facto. This would be discussed further at the end of the essay.
- Surrogate mother and biological mother’s rights
It is important to consider the surrogate mother and biological mother’s rights in this particular rights. Generally, the surrogate mother or the gamete donor would have abandoned their parental rights for the intended parents.
First, the rights of the surrogate mother will be discussed. In most cases, the surrogate seems to have no rights on the born child. A surrogacy agreement is contracted between the surrogate mother and the commissioning parents. The surrogate mother will agree to give the ‘parental’ rights to the commissioning parent after the birth of the child. In some countries, like in France, motherhood is recognised at birth as the birth certificate would designate the mother of the child as the one who gave birth to the child. This bioconservative conception would therefore recognised the surrogate mother as the mother of the born child, regardless of the child’s DNA. This automatic filiation give full rights to the surrogate mother in legal system using the same conception of motherhood.
In other countries, such as the United States or the United Kingdom, surrogacy is allowed and the birth mother would gave the child to the commissioning parent which would after apply for Parental Orders. The commissioning parent will therefore become the legal parents. Giving away motherhood is not an insignificant act. In some cases, the surrogate mother is forced to give away the baby, her consent could often be comprise, by economical reasons or simply by unexpected bond created during the pregnancy. For communitarians but also for bioconservatism, motherhood can not be sold and any surrogacy agreement should be void.
The rights of the egg donor will now be discussed. In some cases, egg donation could be totally anonymous but in some countries it can be possible for the child to try to contact the egg or sperm donor. In the UK, after the age of 16 years old, a child conceived with the help of an egg or sperm donor could request information to the Human Fertilization & Embryology Authority. This right does not guarantee the obtention of the information but allows some child to have further information regarding their biological identity. Donor would usually have no rights, unless they have created a bond with the child from birth or made a special agreement with the legal parents. Each legal system could grant different rights to the child or the donor. The egg donor does not have strictly rights but could be involved in some ways in the life of the child.
III) The balance of different individuals’ right to respect of family life
The European Court of Human Rights is a subsidiary court that could give the final decision to the commissioning parent if they are not satisfied in the national level.(A) The UK should therefore tried to comply to the European Court of Human Right to not see his decision to be dismissed. Nonetheless, if the UK guarantee the best interest of the child, their decision will probably be confirmed by the Court and be declared in the scope of their margin of appreciation.(B)
- Rights already guaranteed by the European court
The European Court of Human Rights is a subsidiary court which allows member States national to appeal against a national supreme court ruling. The European Court of Human Rights must ensure each member States complies with the European Convention on Human rights. However, the Court grant a margin of appreciation to each member States and evaluate their decision using the proportionality principle. The stronger the consensus on a defined topic, the narrower will be the margin of appreciation of each member States. In the case of surrogacy, member states have different regulations. While surrogacy is heavily fined and banned in Italy, it is allowed in the UK,, although it includes only altruistic surrogacy.
The European Court of Human Rights has already ruled multiple times in the field of surrogacy agreement. In most cases, the Court will protect the interest of the children born. The margin of appreciation is slightly narrower in the cases of denial of recognition. Indeed, when a member State does not want to recognise a child born to a surrogate mother outside of a member State, the child would be deprived of his/her parent’s nationality and also this includes his/her identity. The court could also recognised non-biological bond between the child and the parents ( right to personal development and autonomy).At times, the court could decide to separate a child from his/her intended parents if the court considered it as a fair balance between the interests at stake.
It appears that the court tend to favorised genetic bond in a few cases.
- UK decision regarding the case
UK already recognised surrogacy mother but this case has extraordinary circumstances. One is that the commissioning couple did not receive the father’s consent for the sperm donation and for the conception. The second matter is the international aspect of the case. The couple tried to bypass british law on gender selection.
Granting legal parenthood to the commissioning parent could raised the question of reproductive tourism for gender selection.
It is important to highlight the fact that the commissioning parent lived in the UK but decided to conceived in the US. Indeed, the commissioning parents wanted to have a male grandchild. Gender selection, could also be referred as gender discrimination during pregnancy, is forbiden by european law. The commissioning parent decided to bypass British and European law in order to have a male grandchild. If they would have proceed to surrogacy in the UK, this would not have been possible. Due to the behaviours of the commissioning parents, the UK might want to prevent the propagation of future cases. As it is not possible to punish or condemn act performed outside of their judicial competence (with the principle of territoriality of law) the British government could not fines the commissioning parents. Nonetheless, they should not allow such discrepancies.
Although the British government should not grant the request of the commissioning parent, they cannot deprive the child from an identity and act in accordance with the best interest of the child. In the british case “In re L.”, the court decided to allow parental order for the best interest of the child,despite the abuse of public policy by the parents.
As indicated in the current case, the child has been living with the grandparent after his birth. This could suggest that the grandparents could claim they have created ‘strong family ties’ with their grandson. If the State decided to put the grandson for adoption, this would not be at the best interest of the child. Indeed, the child has been living with his grandparents for about 3 years. Generally, it is not possible to claim such a link within a few months, however after at least one or two years, it appears that a bond is created between the child and the “parents”.
Child should be recognised as the child of his biological deceased father. This would granted the grandparent family ties but not recognised them as his parents. It seems preferable the child is not sent away from his family for adoption. This would not deprive the child from his nationality nor some family ties, it will also allow him to stay with his current environment.
As developed in detail all along this essay, by collecting the sperm of their son, the commissioning parents have breached both their son’s and grandson’s rights. As grandparents, they could have some rights derived from the biological link, but also the fact they have been raising their grandchild since birth. However, the surrogate mother or the egg donor could potentially also be involved in the life of the child. In order to respect the position of the European Court of Human Rights but also to prevent future similar cases, it would be recommended to nor recognise the grandparents as the legal parents of the child if they requested it. Nonetheless, the child should be granted British nationality, and his deceased father should be recognised as his legal parent.
Resources
- Robert Ranisch and Stefan Lorenz Sorgner, Post- and Transhumanism An Introduction, (Book 1, 2014, Edition Peter Lang) p.12.
- European Convention on Human Rights, Art. 8.
- Evans v. UK (2007).
- Ternovszky v. Hungary (2010).
- Monory v. Romania and Hungary (2005), Kutzner v. Germany (2002).
- Marckx v. Belgium (1979)
- Article 311-25 of the French civil code.
- Nathan Hodson and Susan Bewley, ‘Parental orders and the rights of surrogate mothers’ (2018) 352 BJOG <https://doi.org/10.1111/1471-0528.14565> accessed 14/10/2019
- Michel Sandel, ‘What money can’t buy: The Moral limits of markets’ (1998), excerpt from Tanner lecture.
- Human Fertilization and Embryology Authority,’Donor-conceived people and their parents’ <https://www.hfea.gov.uk/donation/donor-conceived-people-and-their-parents/finding-out-about-your-donor-and-genetic-siblings/> accessed 15/10/2019.
- Richard F. Storrow,’ International surrogacy in the European Court of Human Rights’, (2018), N.C.J. INT. L., Vol. 43, pp. 54 and 59.
- Mennesson v. France.
- Paradiso and Campanelli v. Italy ( 2017).