24 March 2023,
FAFCE contributed to a call for feedbacks of the European Commission following its proposal to update of its 2011 Directive against human trafficking, very much welcomed in light of the evolution of the forms of exploitation for the past decade.
FAFCE feedback to the European Commission’s adoption of a proposal of directive amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims
FAFCE welcomes the adoption by the European Commission of a proposal to review the EU rules when it comes to the fight against human trafficking. Our Federation acknowledges the relevance of an update of the 2011 Directive in light of the evolution of the forms of exploitation for the past decade.
As recalled by the Commission’s proposal, “trafficking for sexual exploitation has continuously been the most prevalent form of exploitation in the EU accounting for over a half of all victims and affecting predominantly women and girls. Trafficking for the purpose of labour exploitation has been the second most frequent form of trafficking in the EU, with the number of victims rapidly increasing and nearly doubling in the last five years. However, trafficking for other purposes has gained more prominence over time both as regards forms of exploitation already included in the Anti-trafficking Directive (begging, exploitation of criminal activities and the removal of organs) as well as forms not explicitly mentioned therein (including forced marriage and illegal adoption). The overall percentage of other purposes of exploitation represents more than 10% of all victims.”
FAFCE calls for the additional inclusion of human trafficking for reproductive exploitation purposes, explicitly in the context of surrogacy. Surrogacy indeed entails the commodification of women’s body for reproductive purposes and the selling of children.
Even when the surrogate mother consents to the commodification of her body and reproductive functions, the consent is biased and thus void. Indeed, according to the Article 2 of the 2011 Directive, human trafficking includes “the recruitment […] of persons, including the exchange or transfer of control over those persons, by means of […] the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” In practice, surrogacy means the exploitation of poorer women for the purposes of providing a child to richer couples. Surrogate mothers are often in situations of vulnerability, facing economic difficulties, and come to sell their body and their reproductive functions in order to support themselves and their family. In addition, the procedure of surrogacy implies medical risks, such as the common lack of post-natal care and an increased risk of postpartum depression, risks that only surrogate women carry, including death. On the other side, private surrogacy clinics generate huge benefits from the exploitation of these women.
In 2021, the European Parliament stated that the “sexual exploitation for surrogacy and reproductive purposes […] is unacceptable and a violation of human dignity and human rights.”.
The practice of surrogacy also violates the rights of the child, who becomes the object of a transaction, and thus a victim of human trafficking. Our Federation regrets a double-standard of the European Commission when it comes to its fight against illegal adoption and human trafficking, as it currently promotes a regulation proposal on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. Our Federation regrets the unfair asymmetry it will create when comparing with the processes of legal international adoption. Adoption is a rigorous and intensive process that prioritizes the child’s wellbeing at the necessary cost of long wait times. Couples must pass an arduous process to be approved for adoption and confirmed in their capacity to execute the responsibilities of parenthood. By choosing adoption, couples demonstrate that they value the interests of their child over their own interests. In the situation of surrogacy, it is the opposite: no requirements have to be met by the so-called “intended” parents, who prioritize their wish for a child above his or her best interests. When applying the same framework as for international adoption, some surrogacy arrangements could clearly be defined as situations of illegal adoption.
Our Federation strongly calls the European Commission to include surrogacy as a situation of human trafficking in its review of the 2011 Directive.