Surrogacy Insights
The Law of July 6, 2007 (number 2007023090) primarily governs Belgium’s regulatory framework for assisted reproductive technologies. While this legislation comprehensively addresses various facets of assisted reproduction, such as donation, storage, and disposal of genetic material, it leaves surrogacy as a contentious and predominantly unregulated domain. Despite the explicit prohibition of commercial surrogacy, non-commercial surrogacy remains legally permissible.
Belgium tolerates surrogacy but imposes stringent requirements on intended parents. After the birth of a child through surrogacy within Belgium, the intended parents must initiate an adoption process. The surrogate retains the right not to relinquish a child, regardless of the genetic connection between the child and the surrogate.
Belgian law prohibits single individuals and gay couples from accessing surrogacy arrangements.
In Belgium, intended parents typically choose surrogate mothers who are individuals with pre-existing personal relationships, often family members or close friends.
Advisory Committee on Bioethics
In 2023, Social Affairs Minister Frank Vandenbroucke highlighted the departure of numerous gay couples from Belgium due to the lack of viable surrogacy options. In response, he requested counsel from the Advisory Committee on Bioethics regarding this trend. The committee subsequently released recommendations, which include:
- Surrogacy should be available for all individuals unable to conceive naturally.
- They advocated for a reduction in the existing threshold for engaging in surrogacy arrangements within Belgium.
- They emphasize non-discrimination based on gender, sexual orientation, or financial status, thereby extending surrogacy rights to gay couples and single individuals.
- They recognized surrogacy as a form of medically assisted reproduction, warranting financial support akin to other assisted reproduction methods.
- They proposed a shift in terminology from “surrogate mother” to “surrogate woman.”
- They affirmed the importance of surrogates’ bodily autonomy.
- They concluded that commercial surrogacy should not be permitted.
- They emphasized the need to recognize the child’s right to know their origins.
- The Committee had divergent views on the validity of surrogacy agreements and the surrogate’s right to change her mind, with some members suggesting judicial intervention in such cases.
Returning to Belgium with a child born abroad
The stance of Belgium authorities regarding a child born via surrogacy in another country is problematic:
- Belgium administrators will not recognize the foreign documents issued in this framework (birth certificate, court judgment…). This position is maintained even if the local legal procedure is scrupulously respected. Indeed, legal consequences in a foreign country have no legal effects on Belgium’s domestic law.
- The services of the FPS Foreign Affairs will refuse to recognize de jure the legal paternity/maternity right of the Belgian citizen and will not issue a travel document for the child.
European Court of Human Rights
In 2014, in the case of D and Others v. Belgium (dec.)– 29176/13, the applicants, who were Belgian citizens undertook surrogacy in the Ukraine. Their child was born on February 26, 2013, and a travel visa for the child was issued on July 31st, 2014, ie. 17 months later). The child remained in Ukraine with a nanny, and the parents traveled frequently to visit their child. They argued that under Article 8 of the Convention, their effective separation from the child on account of the Belgian authorities’ delaying the issue of a travel visa had harmed the relationship between the baby and themselves.
The court determined that Belgian authorities were within their rights to conduct relevant legal checks. Additionally, it was deemed reasonable for the applicants to anticipate that the process of having their family relationship recognized and bringing the child to Belgium might take some time. Furthermore, Belgium cannot be held responsible for the difficulties encountered by the applicants in remaining in Ukraine for an extended period. Ultimately, the European Court concluded that the actions of the Belgian State fell within the permissible range of discretion.
Future Legal Developments
- There have been no updates regarding actions taken concerning the recommendations of the Advisory Committee on Bioethics.
