Europe's Dilemma with International Surrogacy Arrangements: A New Means to Parenthood or Transnational Crime?

European Union (EU) Directive 2024/1712 mandates Member States to criminalise the ‘exploitation of surrogacy’ where all constitutive elements of human trafficking are present. Prior to this Directive, European States were mainly guided by the European Court of Human Rights’ interpretation of the right to private life of Article 8 in the European Convention of Human Rights (ECHR). Accordingly, absolute and general non-recognition of legal parenthood following international surrogacy violates the surrogate child's rights to have one's parental link formalised unless it involved illicit practices.

Many States consider payment/profiting to the surrogate as abuse of her position of vulnerability rendering possible consent ‘unfree’. In transposing the Directive, some States extend national criminalisation based on compensation to international surrogacy and justify the measures as necessary to prevent exploitation.

This article assesses the Italian legislation and Dutch Draft, evaluates their justifications, and weighs them against the scope of unfree consent under international law. It shows that criminalisation based objectively on compensation is over-inclusive. It advocates for limiting criminalisation of international surrogacy to the scope of the Palermo definition of human trafficking. Universal bans, besides unnecessarily restricting a surrogate's autonomy, violate the right to family and private life of European intending parents and surrogate children.