I will present the surrogacy framework in the EU.

First, we will discuss the freedom of movement of intended parents and surrogate
mother as patients.
Patients may seek treatment in another Member State of the EU.
Since Regulation 1406/71 on social security coordination as completed by the Kohll and Decker
cases, the freedom to provide treatment has expanded to cross-border healthcare treatment.
The Directive 2011/24 on the freedom of movement of patients confirms the possibility for patients
to get treatments abroad and sometimes to be reimbursed by their Member State of affiliation.
Point 7 states -in Grogan’s line- that Member States cannot be forced to provide a treatment.
But the principle remains that patients have a right to move and get treatments in another Member
State of the EU.

What is a « Treatment »? Pregnancy is not a disease... Surrogacy involves at least two people...
Who is the patient? (one or both of the intended parents, the gamete providers or the surrogate
mother). There is no consensus across the EU.

More precisely, the patient has three rights: the right to go abroad to get surrogacy treatment, the
right to information about it and the right to be reimbursed for the medical costs.
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1) The right to go abroad to get IVF and/or prenatal care

National rules cannot prevent citizens of the EU seeking treatment elsewhere in the EU, provided it
is acceptable in another Member State.

When to move?
- a therapy is not available in the home state because it is a new experimental therapy
- an individual is seeking access to care which can be provided more rapidly or more cheaply or
where the patient believes it can be provided at a higher standard
- the services are unavailable in his/her own Member State, due to the fact that the home Member
State has chosen to limit the provision of such services on cultural or religious grounds.

Notwithstanding, patients cannot be prevented from going abroad to access fertility treatment which
is part of a surrogacy agreement, or to engage in a surrogacy agreement. This leads to the
information topic.
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2) The right to information about surrogacy in another Member State

Grogan case : “it is not contrary to Community law for a Member State in which medical
termination of pregnancy is forbidden to prohibit students associations from distributing
information about the identity and location of clinics in another”.

In this case, associations did not have an economic activity. But what about a a law prohibiting the
provision of information about an unethical medical procedure by the foreign hospitals or providers
of surrogacy services?

Directive 2011/24 does not take position :/ It states “information that has to be provided
compulsorily to patients should be specified” thus leaving the question of the right to know about
procedures which are forbidden in the Member State of affiliation to come either to the national
authorities, the EU legislative bodies or to the CJ.
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3) The right to be reimbursed by the State of affiliation
The principle is that the obligation to reimburse cross-border healthcare under Directive 2011/24 is
“limited to such healthcare that is among the benefits to which the patient is entitled within its
Member State of affiliation”.
In the Smits and Peerbooms case, the Court gave a right to reimbursement to the patient undergoing
a new experimental therapy. We don’t have an example of reimbursement of a treatment forbidden
in the Member State of affiliation. But Directive 2011/24 on general principles for reimbursement
of costs state that there will be no reimbursement if the procedure is not provided for in the national
legislation of the Member State of affiliation.
There can be hesitations in case of a rare disease. Directive 2011/24 adds that the Member State
might choose to reimburse the cost of cross-border healthcare beyond simple reimbursement of the
treatment itself. (extra costs, such as accommodation and travel costs, or extra costs incurred by
persons with disabilities).
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To finish with patient's rights, there is the alternative of the freedom of establishment of EU
citizens

You can rely on article 21 and 49 TFEU. The idea is then to move and legally reside in a Member
State which legalises surrogacy in order to proceed to it. Unfortunately (or fortunately?) there are
very few States in Europe which allow it, one example is Greece.
However the Greek law provides that an EU citizen can obtain social assistance and surrogacy in
Greece when he/she has stayed there for three years (the acquisition of the right of permanent
residence can take up to five years).
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Now let's have a look at the Protection of the parties.
This protection involves the non-discrimination principle. However non-discrimination does not
allow for surrogacy per se. For instance, article 14 ECtHR or Article 19 TFEU could be used to
allow homosexual parents to acquire the same reproductive rights as heterosexual parents. It has not
been done yet, and the authors note that ECtHR’s interpretation has been shy...
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The protection of the parties also relies on medical standards.

Directive 2004/23 creates a minimum standard in the use of reproductive cells.

The Directive mentions the possibility of import/export of human tissues and cells which could be
particularly relevant in the framework of surrogacy.

In the Blood case (English Court of Appeal on the basis of EU law). the Court considered that 56
TFEU was applicable in order to allow the movement of reproductive cells from Stephen Blood,
husband of the claimant who had died in the UK to a fertility clinic in Belgium.

It raised numerous questions regarding the protection and movement of cells, thus leading to
Directive 2004/23.
According to this text, donation must be voluntary and unpaid. Dir also provides for the right to
information and anonymity.
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The authors finally develop Private international law. It must be noticed that surrogacy
neither falls within the scope of Rome 1 on the law applicable to contractual obligations, nor
Rome 2 on the law applicable to non-contractual obligations. That means there is a kind of
loophole in EU law.
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As a conclusion, the article mentions the famous Mennesson case (which was pending when the
article was written). As they predicted, EcTHR checked that a balance has been found between the
interests of the child (see Convention on the rights of the child). (we will also see further Valdís v.
Iceland, which gave the Court the opportunity to rule on the refusal of parentage recognition).

The legal bases used in my presentation were Articles 114 (approximations of laws) and 168 TFEU
(public health). They provided competence to adopt Directives 2004/23 and 2011/24. According to
the authors, “These two legal bases could provide a useful combination to adopt texts relating to the
free movement and the healthcare of surrogate mothers.”

Now Marielle will present the “ex post”, that is to say the legal parenthood frameworks.