How the European union deals with surrogacy. Birth without borders as a driver of value conflicts?

Abstract

Surrogacy has appeared in the European Union (EU)’s agenda since the early 2010s following the rulings of the Court of Justice of the European Union (CJEU), the advisory opinions of the European Court of Human Rights (ECtHR), and the rejection of this practice by the European Parliament (EP). This is part of a broader evolution imposing surrogacy as a transnational issue setting major ethical challenges. Against this background, our research question is two-fold. First, is the EU likely to develop a full-fledged regulatory framework on surrogacy? Second, is surrogacy a bone of contention that fosters morality politics at the EU level? Morality politics is here defined as a political style characterized by two features: a dynamics of politicization leading to uncompromising value conflicts; the primacy of “first principles”, frequently with a religious dimension, over interests. Our findings suggest that surrogacy does not fully develop into an EU policy area. This is largely explained by the resistance of European institutions to engage in a morality politics-like debate. In other words, this is precisely the controversial dimension of surrogacy and the impossibility to deal with it in the usual EU policy style based on compromise and avoidance of value clashes that prevent any EU regulation.