SLIDE 1 The freedom of movement of intended parents and surrogate mother as patients

Article 22 of Regulation 1406/71

Kohll and Decker cases
Directive 2011/24 : possibility to get treatments abroad
definition of a treatment

SLIDE 2 : 3 rights:

- 1) the right to go abroad to get surrogacy treatment

- 2) the right to information about it
- 3) the right to be reimbursed for the medical costs

SLIDE 3 : 1) The right to go abroad to get IVF and/or prenatal care

“National rules on rights to treatment cannot prevent citizens of the EU seeking treatment
elsewhere in the EU, no matter how unethical or immoral such treatment may be seen in the home
state, provided it is acceptable in another Member States” (T. Hervey and J. McHale, Health Law and the
European Union)

When to move?
- a therapy is not available in the home state because it is a new experimental therapy (Smits,
Peerbooms case)
- an individual is seeking access to care which can be provided more rapidly (Kohl, Van Riet cases)
or more cheaply (Vanbraekel case) or where the patient believes it can be provided at a higher
standard (Muller-Faure case)
- the services are unavailable in his/her own Member State (limitation on “ethical” grounds)

SLIDE 4 : 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 Member State where voluntary
termination of pregnancy is lawfully carried out and the means of communicating with those
clinics, where the clinics in question have no involvement in the distribution of the said
information”.
Dir 2011/24 does not take position...

SLIDE 5 : 3) The right to be reimbursed by the State of affiliation

Directive 2011/24: obligation to reimburse is “limited to such healthcare that is among the benefits
to which the patient is entitled within its Member State of affiliation”.
Smits and Peerbooms case: right to reimbursement to the patient undergoing a new experimental
therapy
extra costs

SLIDE 6 The alternative of the freedom of establishment of EU citizens

article 21 and 49 TFEU
move to Greece?

SLIDE 7 Protection of the parties

non-discrimination principle (! non-discrimination does not allow for surrogacy per se!)
article 14 EctHR, article 19 TFEU

(children: all texts about children’s rights are focused on the protection of the children after they are
born and without link to their origins.)

SLIDE 8 : Protection of the parties: medical standards

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

- possibility of import/export of human tissues and cells

Blood case (English Court of Appeal on the basis of EU law).

Directive 2004/23: donation must be voluntary and unpaid (“Donors may receive compensation,
which is strictly limited to making good the expenses and inconveniences related to the donation”).
- right to information and anonymity.

SLIDE 9: Private international law

 neither within the scope of Rome 1 on the law applicable to contractual obligations
 nor Rome 2 on the law applicable to non-contractual obligations

=> a loophole in EU law?

SLIDE 10 : Surrogacy framework: conclusion

no common trend...

Mennesson (2019) : EcTHR checked that a balance has been found between the interests of the
child (cf Convention on the rights of the child)

legal bases: Articles 114 (approximations of laws) and 168 TFEU (public health): «  These two
legal bases could provide a useful combination to adopt texts relating to the free movement and the
healthcare of surrogate mothers. »