Gender-based equality has been at the heart of the debates on motherhood within the context of surrogacy cases, for ‘intended mothers’ and biological mothers, as well as associated rights and protections where certain asymmetry can be observed concerning the rights of intended fathers versus mothers. Arguably, the system has thus far failed to accommodate the realities of the contemporary world and consequential needs of women within this widely criticised and illegalised ‘market’, as shall be argued in this brief commentary on the AM v Norway case, focusing specifically on some key reflections offered in Judge Jelić’s dissenting opinion.

Some argue that ‘[s]urrogacy indeed entails the commodification of women’s body for reproductive purposes and the selling of children’ and a decision was taken jointly in 2021 by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and the Committee on Women’s Rights and Gender Equality (FEMM) that ‘sexual exploitation for surrogacy and reproductive purposes […] is unacceptable and a violation of human dignity and human rights’. Vulnerability of surrogate mothers from poor countries and deprived backgrounds has been noted. However, on the other hand, some have attempted to analyse the phenomenon from the perspective of potential landscapes of empowerment.

The debate has thus far been centred around surrogate mothers and the best interest of the child. Various abuse risks and challenges have been identified regarding the children born out of surrogacy arrangements as well as the vulnerable biological mothers which has resulted in such strict legal frameworks. However, studies have confirmed that the arrangement can be conducted in a safe and respectful manner where the biological mother has little difficulty separating with the children. Empirical studies have also reported that surrogacy appears to be predominantly a positive experience both for the surrogates and intended parents.

However, this discussion canvasses the other dimension of the debate, that is, the vulnerability and ineffective rights’ protections of the intended mothers. Looking into the case law of the Strasbourg Court (European Court of Human Rights (ECtHR)), Judge Jelić in her dissenting opinion in the case of AM v Norway, provided relevant observations while disagreeing with the majority view that there was no violation of Article 8 ECHR (European Convention on Human Rights) nor Article 14 (applied in conjunction with Article 8). It was stated that the position of the majority not only points to national legislation flaws in Norway, but also reveals several issues with the Court’s ‘process-based approach in assessing the applicant’s capacity for becoming a legal mother while being biologically incapable herself of procreating’ [24].

Starting with identifying relevant legal shortcomings, the Judge considered the case of Mannesson v France, stating that even though States have a margin of appreciation concerning the legal recognition of the parent-child relationship, ‘where a particularly important facet of an individual’s identity was at stake, such as when the legal parent-child relationship was concerned, the margin allowed to the State was normally restricted’ (Advisory Opinion, [44]). As such, it was rightfully argued by the judge that considering best interest of a child, the margin afforded to national authorities should be reduced ‘to allow for the primordial protection of the child’s interests’ [25]. In addition to the reasons outlined above, the Judge stated that other relevant criteria should have been taken into account as an essential part of the assessment, including ‘the joint intent of the (prospective) parents in having and raising the child, the inability of the intended mother to procreate by natural means, and the circumstances leading up to the pregnancy and birth of the child’ [26].

The wide margin and rigid approach by the Norwegian authorities does not account for the sensitivities of such complicated situations, vulnerability of parties concerned, nor diverging circumstances [27]. Therefore, a case-by-case individualised approach has been suggested with variable levels of the width of margin afforded. In the aforementioned case, the State had legitimate interests in view, such as protection from abuse and exploitation, however, there was no evidence as to such being present. Consequently, it is debatable if the broad prohibition against surrogacy can be used as a justification for rejecting the applicant’s claim to be recognised as the child’s legal mother [28], utterly overlooking the vulnerability of the position of the intended mother as well as the asymmetry that she faces as compared to the rights and protections afforded to the biological (intended) father.

Several instances of unfair and discriminatory treatment were noted [43-50], including the failure to award the applicant with legal recognition of motherhood which resulted in the father retaining sole authority and refusing the applicant any right to visit or stay in contact with the child. This created a certain imbalance of power, placing the absolute decision-making power in the sole hands of the father who may retaliate against the mother in face of a conflict, for instance.

The overly restrictive laws were argued to have effectively:

‘ruled out any favourable outcome for the applicant […] as the authorities could not consider crucial                     aspects affecting her situation, such as the fact that the applicant was biologically unable to procreate,                 that E.B. [the biological father] and she had tried to initiate a pregnancy on multiple occasions, that they             had been in a long-term relationship before their separation, that they were both the intended parents of             the child, and that they had agreed to raise the child together’ [29].

As such, the applicant was placed in a disadvantaged position where the applied law failed to account for her uniquely vulnerable position and afford any real chance of being given the same standing and recognition as an intended parent as that of the biological father. Thus, in pursuit of protection and equality for the (allegedly) exploited biological mothers, have the legal justice systems entirely forgotten about the ‘other’ women? Or, have we simply decided to cover our eyes, blind and deaf to the struggles of the intended mothers?