The surrogacy business is booming. Prices on the American market have reached record levels. In Europe, Ukraine accounts for a large share of the low-cost segment. In Africa, dubious ‘baby farms’ are making headlines. In Mexico and Colombia, a new market is emerging.
Countries such as the United Kingdom, Israel, Cyprus and South Africa permit surrogacy under certain conditions. At the same time, a majority of states continue to reject it, either explicitly or in practice. The Slovak Republic is among them.
The Family Act does not allow a surrogate mother to relinquish maternity in favour of other persons before the child’s birth. A specific provision states that agreements which do not recognise the birth mother as the legal mother are invalid. The invalidity is absolute, with all its legal consequences.
Surrogacy ban enshrined in Slovak constitution
A recent and widely criticised constitutional amendment incorporated the prohibition into the country’s supreme law, alongside the contentious provision defining the biological sex of men and women. The Constitution states that the parents of a child are the mother and father (Article 41, paragraph 2) and prohibits agreements to bear a child for another person (Article 14, paragraph 5).
Such an agreement lies at the heart of so-called surrogacy.
Surrogacy occurs when commissioning parents – usually a couple – enter into a contract with a third-party woman who, at their request, undergoes artificial insemination. This may involve insemination using the husband’s sperm or donor sperm, or in vitro fertilisation, in which an egg is fertilised outside the body and the resulting embryo is implanted into the woman’s uterus.
The contract as the basis for the child’s birth
The legal foundation of surrogacy is a contract between two parties. On one side stands the commissioning couple, on the other a third-party woman. As with any contract, it sets out the mutual rights and obligations of the parties.
The surrogate mother agrees to undergo medical procedures, carry the child to term, give birth and hand the baby over after delivery. The commissioning couple, typically married, agree to cover the costs associated with the pregnancy and may provide additional compensation. They also undertake to assume responsibility for the child after birth.
Under Slovak law, motherhood is determined by childbirth, not by genetic origin or a unilateral declaration. It is therefore not a DNA test that establishes maternity, but the birth certificate, which records the woman who gave birth.
Under current legislation, the mother is always the woman who has given birth, regardless of genetic links. If a surrogate mother gives birth, she is recognised as the legal mother, which may create complications for commissioning couples.
European court rulings favour surrogacy
Advocates, particularly at European level, argue that surrogacy is a legitimate form of assisted reproduction that can help couples who cannot have children for biological reasons.
They maintain that appropriate legal and ethical regulation can reduce the risk of abuse and protect all parties involved. For some couples, surrogacy may represent the only way to have a biological child.
The case law of the European Court of Human Rights (ECtHR) leaves some scope for recognition even where surrogacy is prohibited under national law. The Court has held that individuals have a right to decide on their reproductive life and that a ban may interfere with the right to family life under Article 8 of the European Convention on Human Rights.
In Mennesson v France, the Court examined a case in which a couple entered into a surrogacy arrangement in California, where twins were born with a biological link to the father. Californian courts recognised them as the legal parents. Upon their return to France, however, the authorities refused to register the children because surrogacy was not recognised under French law.
The ECtHR found that France had violated Article 8 in respect of the children’s private life. The refusal to recognise the legal relationship with their biological father undermined their identity and legal certainty.
Together with the parallel case of Labassee v France, the judgment prompted France to adjust its procedures for recognising parenthood. The Court emphasised that the child’s interest in a recognised legal identity takes precedence over domestic restrictions.
The illusion of state autonomy
In such cases, the Court has held that respect for a child’s private life requires domestic law to allow for the recognition of a legal relationship between the child and at least one parent, even if the child was born abroad through surrogacy.
However, the ECtHR has also ruled that such recognition is not required in the absence of a genetic link, as in Paradiso and Campanelli v Italy.
European law therefore leaves the regulation of surrogacy largely to the Member States, including the possibility of prohibition. At the same time, the Court requires flexibility in specific cases in order to safeguard the child’s best interests.
A similar tension arises in relation to same-sex partnerships. While such unions are not recognised as marriage in the Slovak Republic, the ECtHR has pointed to the need for some form of legal recognition.
Surrogacy as child trafficking
The arguments against surrogacy are strong. In principle, it can be seen as a form of ‘child trafficking’ under criminal law, which prohibits it. Offences such as human trafficking, the transfer of a child to another person or related unlawful acts may therefore come into play.
For example, human trafficking may include situations in which someone, in exchange for payment or other benefits, obtains the consent of a person on whom another is dependent to hand that person over to a third party. In that sense, the legal definition mirrors key elements of the surrogacy process.
Critics further argue that surrogacy can lead to the exploitation of women, particularly in economically vulnerable situations.
Many countries therefore prohibit or strictly regulate the practice, citing the protection of human dignity and the prevention of exploitation. Germany, France and Italy all prohibit surrogacy.
In many documented cases, surrogate mothers come from economically disadvantaged backgrounds and agree to such arrangements because of financial hardship. Reports from several countries have uncovered so-called ‘baby farms’, in which organised criminal groups buy and sell infants under the guise of fertility treatment.
The need to reject surrogacy as an accepted practice is also addressed in a report by United Nations Special Rapporteur Reem Alsalem, who recommends a global ban on all forms of this practice.
Paradox: prohibition strengthens criminal networks
The link between surrogacy and criminal activity is often cited as a reason for strict prohibition. At the same time, such bans raise a fundamental paradox.
No legal prohibition can eliminate the desire of childless couples to have a child. As a result, bans do not necessarily prevent the practice but may instead change its form.
One possible outcome is that couples travel to countries where surrogacy is permitted, such as Ukraine or, under certain conditions, the Czech Republic, and pursue arrangements there. They may later seek recognition at home, including through legal action before the ECtHR.
A second, more problematic scenario involves recourse to criminal networks that profit from prohibition and the exploitation of vulnerable women. In that sense, bans may contribute to the expansion of a black market.
Illegal arrangements often entail higher costs and greater risks, as there is no regulatory oversight.
Supporters of surrogacy therefore argue that prohibition can drive the practice underground, increase opacity and strengthen organised crime.
Opponents counter that the existence of illegal activity is not in itself a sufficient reason for legalisation. They note that practices such as human trafficking remain prohibited despite their persistence.
The central question is whether a legal framework should permit arrangements that risk turning human life and reproduction into a tradable ‘commodity’. At the same time, the demand for children does not disappear under prohibition, which may lead to the search for alternatives outside the law.
The issue therefore remains ethically complex and politically sensitive. As the case law consistently underlines, any regulation must place the best interests of the child at its centre.