Something Nasty is Brewing in The Hague (and in the EU)
by Patricia Merino Murga
Published in El Común 24/01/2024. https://elcomun.es/2024/01/25/algo-feo-se-esta-cocinando-en-la-haya-y-en-la-ue/
Surrogate motherhood is one of
the most promising emerging global industries today. And so it is in the
classic capitalist tradition: the outright exploitation of nature, huge
profit margins and fantastic growth prospects (in 2022 the business was
estimated to be worth 14 billion dollars, for 2032 the prospects are 129
billion[1]). All
this points to a situation where surrogacy will be
the characteristic form of extractivism of the new transhumanist
capitalism of the 21st century.
The commodification of
motherhood has been going on for four decades. Current legal and medical
techniques make this new form of defining and socially legitimizing human
reproduction possible. The key to it is the denial, derision, and
trivialization of motherhood, despite the fact that in material-empirical
terms, reproduction continues to depend, as it always has, on the
pregnancy of a woman.
Although the legal status of
this practice varies greatly from country to country, the global boom of the
baby market is robust: as soon as the export of babies is restricted in one
country, in Thailand (2015), Nepal (2015) or India (2018), new destinations
such as Colombia, Laos, Kazakhstan or Kenya are activated. Parallel to the
economic boom, the lobbies that defend the interests of the industry multiply
their influence, effectiveness, and propaganda. They have already penetrated
social areas where power hinges: the media, Academia, political parties,
national institutions and international organizations, professional
associations, etcetera. The idea that baby trafficking is inevitable, and that
surrogacy is the best option for many women --their "opportunity" to
escape oppressive situations such as poverty, precariousness, violence or
physical and symbolic worthlessness-- is commonly spread. This pragmatic vision
of surrogacy is just the current expression of the patriarchal tradition that considers
the subjugation of women as "natural", and their inclination to put
their bodies at the service of others as innate. In many countries, such as the
United Kingdom and other English-speaking countries, the debate is no longer
whether surrogacy is or is not a practice that respects human dignity, but
rather about how to make it as minimally abusive as possible so that it does
not upset western subjectivities and those who supposedly defend human rights.
It is argued that the UK, the USA, and Canada (and others with “altruistic” or
highly regulated surrogacy) have “ethical surrogacy”, but in fact, none of
these countries would have any “gestational carriers” at all without their
lower classes on the one hand, and without the ancient, deeply engrained
psychological subjugation of women. Thus, it is all “exploitation”.
The ongoing political and
cultural trend of normalizing surrogacy pursues legitimization by means of
resounding statements in support of "equal rights for all families",
"reproductive justice", some imaginary "reproductive rights",
"women's autonomy" and "freedom of choice" to rent their
wombs and sell or give away their product, and an alleged female
"altruism" that nobody seems to associate with 8,000 years of
patriarchal subjugation. Even more cruel and cynical are statements in the
defence of the "best interests of the minor" or "children's
rights" when the ordered baby has already been produced.
With these arguments, national
governments and international institutions, with little or no serious insight
into the consequences of this practice, have been creating legal
"instruments" that in fact validate it. In Spain, for example, even
though surrogacy is a crime and most parties theoretically do not support it, a
procedure came into force in 2010 whereby babies born by surrogacy had to be registered
on the civil registry, and to this day, this continues to be the administrative
gateway through which baby trafficking into Spain flows smoothly. The tireless
activity of pro-surrogacy lobbies has prompted in many countries and
international organizations the proposal, discussion and approval of new bills
and legislation pieces that, in one way or another, normalize surrogacy.
The Hague Conference on
Private International Law - Conférence de La Haye de droit international privé
(HCCH) is one such organization, and the mission of this intergovernmental body
is to work for “the progressive unification of the rules of private
international law" (art. 1 of the Statute)[2]. To this end, the HCCH has been working for more than 10 years on the
development of a legal "instrument" that will harmonize the global circulation
of children.
The Working Group charged with
this task (formerly a Group of Experts) met last November in The Hague. There
were 54 participants, including representatives of 29 states, 1 regional
economic organization, 3 observer organizations, and members of the permanent
office of the HCCH.
In the report of the meeting we read that, following the guidelines of the CGAP (the governing
body of the HCCH), the new legal instrument will address matters related to
legal parentage generally, including legal parentage resulting from an
international surrogacy arrangement, and that it aims to provide
greater predictability, certainty and continuity of legal parentage in
international situations for all persons concerned, taking into account their
human rights, including, for children, those enshrined in the United Nations
Convention on the Rights of the Child (UNCRC) and in particular their right
that their best interests be a primary consideration in all actions taken
concerning them. Improving the fluidity of the international circulation of
children is, therefore, the explicit objective of this legal instrument.
But What is the authority of
this organization? Are its legal instruments binding?
When we say, "Hague
Conference", notions of history inevitably resonate and relate it to the
famous Hague International Conferences of 1899 and 1907 held to attain peace
and disarmament; these did not obviously achieve their objective, but they did
succeed in signing the "IV Hague Convention respecting the Laws and
Customs of War on Land". The 1954 Hague Convention, which was the first
international treaty for the protection of cultural heritage in the event of
armed conflict may also come to mind.
Well, the Hague Conference
(HCCH) we are talking about here only shares with the above-mentioned conferences
the fact that it is based in the same city, but none of their pacifist and
humanist aspirations. The HCCH is a creation of 1955, and is not devoted to the
preservation of peace, but to Private International Law, specifically, to
achieving a world where, despite the differences between legal systems,
persons – individuals as well as companies – can enjoy a high degree of legal
security[3].
HCCH explains how in today's global capitalism contractual activities require a
high degree of predictability to thrive, but differences between legal systems
often leave loopholes that create uncertainty. The HCCH's mission is to
minimize that uncertainty and ensure the legal force of contracts.
Returning to the report of its
meeting last November: it mentions the intervention of the representative of
the European Union in which he presented the recent proposal of the European
Commission to create, also in the EU, a "Council Regulation on
jurisdiction, applicable law, recognition of decisions and acceptance of
authentic instruments in matters of parenthood and on the creation of a
European Certificate of Parenthood"[4], a legislative project very much in line with that prepared by the HCCH,
and which the European Parliament endorsed last December 14th. The European Parliament's press release tells us that the purpose of the European legislative project is that
parenthood established in a Member State of the EU should be recognised in
all the other Member States, without any special procedure. (regardless
of the circumstances of conception and birth of the child and the type of
family[5],
in the Spanish version of the same press release), and it explains that the
existing varying national laws may cause legal hurdles for families who find
themselves in a cross-border situation. Families sometimes have to start
administrative or even judicial proceedings to have the parenthood recognised,
but these are costly, time-consuming and can have uncertain results. The
creation of a European Certificate of Filiation is part of this project to
normalize this new mode of filiation dissociated from (maternal) biology,
because even though neither the European Certificate nor the instrument
prepared by the HCCH will have binding force at first, both are legal tools
finely tuned to exert pressure and to point in one direction, and that
direction is the normalization of surrogacy.
The unproblematic
international recognition of filiations of surrogacy born children is key to
the final take-off of this industry, because just guaranteeing legal
affiliation in the importing countries (even if the practice is illegal in that
country) ensures the business and allows it to grow to its full potential.
Women's motherhoods are already a natural resource in the global market. They
are exploited in the same extractivist manner as with lithium or coltan. Poor
and/or alienated women are the necessary resource, but like lithium or coltan,
there are places in the world where they are found in greater quantities and
with better conditions of exploitation. In addition, women from countries with
more restrictive and “ethical” regulations may travel to other countries to
serve the surrogacy industry more “freely”. Organizing this international
traffic, minimizing uncertainty, and ensuring the legal force of contracts is
what the global surrogacy market needs, and that is what the new legal
instruments being prepared are here for.
Apparently, the trigger
point for this new regulatory zeal for filiations at the European
level was given by Commission President Ursula Von der Leyen in her 2020 State
of the Union address[6]. In
it, Von der Leyen, who in 2023 and 2022, has been deemed the most powerful
woman in the world according to the Forbes list, linked the need for a new regulation of filiation to the European
strategy for LGBTQI equality. She said: So I want to be crystal clear –
LGBTQI-free zones are humanity free zones. And they have no place in our Union.
And to make sure that we support the whole community, the Commission will soon
put forward a strategy to strengthen LGBTQI rights. As part of this, I will
also push for mutual recognition of family relations in the EU. If you are a
parent in one country, you are a parent in every country.
This discourse handles some
generalizations and ambiguities that are common in communications designed to
normalize surrogacy: the first and fundamental one is to make equal the
mother’s and the father’s position regarding filiation, which means automatically
disregarding biology, secondly, it associates the vindication of rights and
dignity for homosexual and non-heteronormative persons with alleged
"reproductive rights" that do not exist, and finally, it mixes
together different issues such as: the circulation of children by surrogacy, by
adoption, lawsuits for recognition of filiation and conflicts over custody and
alimony. Following Van der Leyen's speech, the issue of international filiation
was included in the European strategy for the equality of LGTBIQ persons,
and the Commission's proposal for a new regulation was prepared in record time.
Nothing to do with timings when the issue to be regulated is the rights of
mothers[7]: for
example, the proposal approved by the European Parliament in 2010 which
established a minimum of 20 weeks of paid maternity leave for all European
women; the processing of this proposal was blocked for 4 years by the European
Council, and finally rejected 6 years later by the Commission.
Cristina González Beilfuss,
Professor of International Private Law at the Universitat Autonoma de Barcelona
(UAB) and representative of Spain in the HCCH Working Group is also a member of
the EU expert group "Recognition of paternity between member states"
EO3765. In her article "The proposal for a European regulation in
filiation matters. Liminal analysis"[8], she
studies the EU regulatory proposal, and says: As usual the commission has
carried out consultations with stakeholders, an expert group has been set up,
an impact analysis and a public consultation have been carried out, but from
the beginning the overall orientation was already determined and was as simple
as what is advocated in the green paper on civil status: to favor the
continuity and permanence of a civil status situation with regard to
affiliation without questioning too much about the origin and legitimacy
of this affiliation.
The spirit of this regulation
suits perfectly the 50 agencies established in Ukraine. Specially as
Ukraine is a candidate country for EU membership, and it represents more than a
fourth of the world's commercial surrogacy market.
The synchronicity and
doctrinal affinity between the EU and the HCCH projects is clear. Two ideas are
systematically stated: that "if you are a parent in one country, you are a
parent in all countries", and that this criterion will be maintained
"without asking too much about the origin and legitimacy of the child".
The central idea is, therefore, that the origin of the child (which is always
the mother's womb) must be ignored. This is the key to all the pro-regulation
texts that seek to normalize surrogacy, that is, to make "normal"
what is in fact abominable.
Going back once more to the
HCCH meeting report: Point 8 in the Introduction states that any work
by the HCCH in relation to surrogacy arrangements should not be understood as
supporting or opposing surrogacy. I don’t know if this declaration stems
from naiveté, cynicism or political requirements, but it is quite obvious that
a legal instrument that has been designed to provide greater predictability,
certainty and continuity of legal parentage in international situations,
and must address matters related to legal parentage generally,
including legal parentage resulting from an international surrogacy arrangement, is
clearly a positive action for the legal protection and defence of a
liberalized international flow of children, that is, in support of the
structural conditions on which the surrogacy industry depends.
In fact, any regulation of
surrogacy defends just one interest: that of the commanding parents and the industry
that supplies them. The surrogacy market depends on the existence of a series
of legal "channels" that dodge and subvert what have been, until now,
the most basic principles of Natural Law. There are three obstacles to be
bypassed: Firstly, the hitherto universal rule that the mother is the woman who
gives birth to a child; secondly, the national legal norms of each country,
that must be circumvented, reinterpreted and homogenized; and thirdly, a new
and counter-intuitive idea must be successfully imposed and made hegemonic: that
“the best interest of the child” is to separate it from her/his mother, she
who´s gestated and given birth to it, and with whom the newborn, who ignores
the commercial, medical and legal operations that have determined his
existence, but knows perfectly well her voice, her smell and her heartbeat,
needs to bond.
Only a universal ban on this
practice will be able to stop the hydra of reproductive exploitation and baby
trafficking. Last November 13th in The Hague, the CIAMS (International
Coalition for the Abolition of Surrogacy), an international collective grouping
50 organizations from 14 countries against surrogacy, delivered to the HCCH at
its headquarters a
petition for a definitive universal ban on surrogacy.
The Sexual contract
It is not by chance that those
who design the instruments that will articulate this new definition of
filiation for the future, both in the HCCH and in the EU, as well as in the
governmental commissions of the countries where regulations on this issue are
being prepared are experts in International Private Law.
Since the existence of written
language, the use of the Law has always been a key instrument in the social
implementation of women’s subjugation, particularly, in the appropriation of
their motherhoods (until the twentieth century only the father had legal
authority over children born to the wives). Feminists cannot have an
indiscriminate respect for the Law, since, even if today rights are formally
"egalitarian" in the western or westernized world, they are still the
result of 5,000 years of history of patriarchal law. Legal formal equality
means that laws have been designed for a non-existent sexually neutral
individual, whose tacit reference is a male’s life typically alien to the
processes of human reproduction. Those who naively believed that legal formal
equality would be capable of putting an end to the exploitation and subjugation
of women were wrong. The current global outlook, and the relentless patriarchal
resolve to turn human reproduction into a completely meaningless practice and a
business, are proof that egalitarianism in law has failed in its goal of
endowing all women with a dignified status in our modern era.
Carole Pateman explained long
ago how The sexual contract stablishes universal male sexual
right over women's bodies and the hierarchy of the sexes. This tacit contract
is the most basic, ancient, and deeply interiorized social norm (almost always
sealed in the unconscious), and the entire edifice of patriarchal structures is
founded upon it. Modernity claims that the contract is a guarantee of a fair
agreement between equals and supposedly it is blessed by consent on both parts,
but when it is the relation between the two sexes (marriage/paternity,
prostitution, surrogacy contract) what is being articulated, it is
subjugation/domination relations what is being dealt with.
What the instrument of the
HCCH and all the other legal pieces pro-normalization of surrogacy filiations
do, is to defend the supreme power of the contract: The contract as a
fundamental democratic achievement, necessary for modern social harmony,
but silent about the sexual contract. Global capitalism in its current stage
needs urgently the re-actualization of the sexual contract, as traditional
forms of male domination are in crisis, and new forms are emerging. The new
forms of the sexual contract are more dehumanizing and violent than what they
have generally been in the last 300 years, but the present transhumanist
cultural climate facilitates this operation.
The unrelenting general
advance of evil and stupidity explains why one can today hear or read in
"serious" communications that infertility is a "disease"
affecting gay male couples, a "congenital condition that requires a
medical solution”. In an academic article misogynistically titled
"Transmission of Human Life with a Gestational Carrier"[9]
infertility is defined as a disease of the male or female reproductive
system that is associated with a psychological deficiency. Pro-surrogacy
lobbies are pushing for this new definition of "infertility" to be
accepted by the WHO, and they have already succeeded in getting it accepted by
some professional associations and administrations[10].
This new conception of "infertility" applied to men has nothing to do
with their physiology, but with their psyche, it could be described as the
suffering of not seeing all their desires fulfilled. Calling men's inability to
become fathers on their own, by parthenogenesis, without having sex or
partnering with a woman a "disease" is not only ridiculous, but also
malicious and dangerous. Men’s alienation from the biological processes of
human reproduction is the natural condition of the male sex, that which defines
men as sex.
Capitalism has created an
amoral culture that relies on widespread narcissism, frivolity, and sadism to
make men and women believe that they can have anything they want and that their
actions have no consequences. Only a few decades ago we believed that
self-knowledge made us wiser, and that our freedom ended where the risk of
harming another person began. These simple and universal truths seem to have
disappeared not only from postmodern subjectivities, but also from all the
general criteria of institutions and organizations that supposedly watch over
people's dignity and defend what are still called "human rights".
[1] “The surrogacy trade: proliferating
bans and an opportunistic industry raise a worrying health risk”. Sally Howard.
BMJ 2023; 383: p2003. http://dx.doi.org/10.1136/bmj.p2003. Downloaded
from http://www.bmj.com/ on 18 October 2023
[3] https://www.hcch.net/en/about/ Downloaded 22/01/2024
[4] https://commission.europa.eu/document/928ae98d-d85f-4c3d-ac50-ba13ed981897_en
[5] https://www.europarl.europa.eu/news/es/press-room/20231208IPR15786/reconocimiento-de-la-filiacion-igualdad-de-derechos-para-todos-los-ninos.
Downloaded 23/01/2024
[6] https://ec.europa.eu/commission/presscorner/detail/ov/SPEECH_20_1655.
Downloaded
20/01/2024
[7] En Maternidad, Igualdad y Fraternidad, Patricia
Merino, Clave Intelectual 2017
[8] En “La propuesta de un reglamento europeo en materia de
filiación. Análisis liminar” Cristina González Beilfuss. RTDeur 10 - 2023 n.02
- https://www.dalloz-revues.fr/revues/RTDeur-26.htm
. Descarga: 27/11/23
[10] https://www.oann.com/video/tipping-point-video/new-jersey-redefines-infertility-to-include-surrogacy-for-gay-couples/
https://edition.cnn.com/2023/10/23/health/reproductive-medicine-group-updates-its-definition-of-infertility-to-address-the-reality-of-all-seeking-care/index.html - Downloaded 19/01/24
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