Lesbian couples in Belgium have been able to expand their families through artificial insemination for a while, but gay men have been left to fend for themselves, sometimes with dramatic consequences. In the news this spring was Baby Samuel, who was conceived using the sperm of a Belgian man and born to a Ukrainian surrogate mother. Because of a lack of surrogacy laws in Belgium, authorities would not let the child into the country. By the time the Belgian consulate finally agreed to provide Samuel with a passport and let him fly over to his two fathers, he had spent the first two years of his life in a Ukrainian orphanage.
“There is no legal framework yet,” says Petra De Sutter, head of the fertility clinic of the UZ Ghent, “so we have to be very careful. The decision raises quite a few ethical and practical concerns.”
The exact nature of these concerns, though, remains guesswork. “We do not wish to go beyond the initial press statement,” De Sutter says after being pressed for further information, “so as not to add fuel to the fire of what is a controversial topic.”
One contentious discussion point is the origin of the egg, which decides the biological mother. Should it be that of the surrogate mother, who carries the child, or should it be the egg of an anonymous donor?
If the surrogate is the biological mother, “should the distance between her and the hopeful parents be as large as possible, or is it perhaps better for the child to maintain contact with its biological mother?” wonders the university’s statement. “Perhaps the child will need a mother figure at a certain age.”
Also, will there be a sufficient number of surrogate mothers available to satisfy demand? De Sutter says she receives about one request a week from gay men hoping to become fathers. “The responsibility to find a surrogate mother and an egg donor if needed is that of the future parents,” she says in an interview with Het Laatste Nieuws. “The hospital cannot take care of that.”
The UZ Ghent now officially supports women acting as surrogate mothers for gay couples, but the legal context in Belgium remains murky. Most parents who have a child via a surrogate who is also the biological mother adopt the child, which is possible once the baby is two months old, with the full consent of the surrogate.
There is no specific law in Belgium covering the practice of surrogate motherhood. There is a law, however, that holds to the principle that the human body may not be traded or be the subject of a legally binding contract. Any such contract between a surrogate mother and future parents – whether gay or not – is therefore not legally binding.
Because of the lack of a surrogacy law here and restrictive laws in many other European countries, many gay couples turn to the US to have children. The US is widely considered to be the preferable country for surrogacy among Europeans because of its solid legal conditions and good medical care. Almost every US state permits compensated surrogacy, and no appeals court has ever awarded custody to a gestational carrier.“
Surrogacy has not been legally approved, and gay couples deciding to have children in this way should know that,” says federal minister of justice, Stefaan De Clerck. “Physicians who are involved in these procedures should inform their patients of that.”