CONCURRING OPINION OF JUDGE DEDOV

For the first time when ruling in favour of the respondent State the Court has placed greater emphasis on values than on the formal margin of appreciation. The Court has presumed that the prohibition on a private adoption is aimed at protecting children against illicit practices, some of which may amount to human trafficking. This is because human trafficking goes hand in hand with surrogacy arrangements. The facts of this case clearly demonstrate how easily human trafficking might be formally represented as (and covered by) a surrogacy arrangement. However, the phenomenon of surrogacy is itself quite dangerous for the wellbeing of society. I refer not to the commercialisation of surrogacy, but to any kind of surrogacy.

In a successfully developing society all of its members contribute by means of their talents, energy and intellect. Of course they also require property, capital and resources, but the latter are necessary merely as material instruments in order to apply the former. Yet even if the only valid resource available to an individual is a beautiful or healthy body, this is not enough to justify earning money via prostitution, pornography or surrogacy.

The Charter of Fundamental Rights of the European Union provides for the prohibition on making the human body as such a source of financial gain, a provision aimed at protecting the right to the physical and mental integrity of the person (Article 3). Yet this clear declaration was at the centre of debates among experts, who failed to find common reasons to support that declaration and to reach definite conclusions, owing to the complexity of the subject and the diversity of approaches by States to these matters.

There could be many arguments in favour of surrogacy, based, for example, on the concepts of a market economy, diversity and solidarity. Not everyone is capable of using their intellect, as this requires considerable intellectual efforts and life-long learning, which is a very difficult task. It is much easier to earn money using the body, especially if one takes into account that strong demand exists for bodies for the purpose of surrogacy, and this demand has been quite stable for centuries. This could help to resolve unemployment problems and to reduce social tensions. If the human body participates in the economy as a valuable economic resource, this does not mean that progress would stop. Those who prefer to use their brains will continue to develop new technologies and science. In the situation of a radically increasing global population, it could be considered reasonable, from an economic perspective, to exploit the body.

However, we face a millennial dilemma here: human beings will survive through natural adaptation, requiring compromise with human dignity and integrity, or they will try to achieve a new quality of social life for all, which would overcome the need for such compromise. The concept of fundamental rights and freedoms requires implementing the second option. It is necessary for survival and development. Any compromise with human rights and fundamental values entails the end of any civilisation. Needless to say, this has occurred many times, both in the ancient world and in modern history.

In fact, there are two reasons why the recipients should support surrogacy: to escape the physical problems caused by pregnancy or to have a child in a situation of infertility. Both types of demand would be satisfied unless a social strategy is involved. Social strategy (based on protection of dignity) may change the way in which the demand could be satisfied: adoption (the easiest way to resolve social problems), development of the embryo out of the uterus (this is not currently possible, but may be in the future through new biotechnologies), development of the already-existing biotechnologies for artificial fertilization which would allow every woman to enjoy pregnancy, promoting the concept that life can be full even without children, promoting a culture of education and the creation of new jobs. It is for society to decide on how it wishes to move forward: towards social progress and development or towards stagnation and degradation. But first of all society must determine the values of fundamental rights, whereby this approach to private life cannot be respected at the expense of society’s stagnation and degradation. Surrogacy would not be a problem at all if it were used on rare occasions, but we know that it has become a big and lucrative business for the “third world”.

As regards solidarity, I do not believe in surrogate motherhood as a voluntary and freely-provided form of assistance for those who cannot have children; I do not believe that this is a sincere and honest statement. Solidarity is intended to help those whose life is at stake, but not those who merely desire to enjoy a full private or family life. Donors should be ready to share through their energy or property (either the surplus or a substantial part of it), but preferably without danger to their own health and life (except in emergency situations, such as fire or other force majeure ). These factors have played a leading role in the recent European migration crisis, when people send a clear message to their governors: we are ready to accept the immigrants on the basis of solidarity, but we are not ready to put our lives at risk.

The single case when a donor can share some parts of the body with recipients is immediately after his or her death, following conscious consent and other procedural guarantees. Pregnancy and childbirth are highly stressful for the donor in both physical and emotional terms; the consequences are not predictable, and thus, in the absence of an emergency situation, surrogacy cannot be considered a proper way to facilitate social solidarity.

I shall not consider the ethical and moral issues, as they should not be used for systemic analysis. They are not currently helpful in resolving the problem, given the wide variety of ethical and moral convictions. It would be better to understand the reality.

According to the comparative-law survey, the number of States which prohibit surrogacy is almost equal to those which explicitly tolerate surrogacy carried out abroad. One may even conclude that surrogacy is “winning”, as only one third of the Member States have explicitly prohibited it.

The statistics and the facts of the surrogacy cases examined by this Court demonstrate that surrogacy is carried out by poor people or in poor countries. The recipients are usually rich and glamorous. Moreover, the recipients usually participate in or decisively influence the national parliament. Moreover, it is extremely hypocritical to prohibit surrogacy in one’s own country in order to protect local women, but simultaneously to permit the use of surrogacy abroad.

Again, this is another contemporary challenge for the concept of human rights: either we create a society which is divided between insiders and outsiders, or we create a basis for worldwide solidarity; we create a society which is divided between developed and undeveloped nations, or we create a basis for the inclusive development and self-realisation for all; we create a basis for equality or we do not. The answer is clear.

The respondent State took a very honest and uncompromising position regarding the prohibition on any type of surrogacy. This is clear from the position of the Government and the Italian Constitutional Court. I believe that this position was reached with the help of Christian values (see Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011 (extracts)).

In Russia the situation is completely different. The Russian Constitutional Court initially (in 2012) refused to examine the problems with surrogacy when a surrogate mother expressed her wish to keep the child at birth. This problem was promptly resolved in 2013 in the Family Code, in favour of the surrogate mother. That was the first legislative initiative to regulate surrogacy arrangements. I have not heard any voice raised to prohibit surrogacy on the basis of fundamental values. Meanwhile, this method of purchasing a baby has become very popular amongst wealthy individuals and celebrities.

As regards the biological link between the child and the adoptive parents (surrogacy recipients), Judge Knyazev at the Russian Constitutional Court in his separate opinion raised a problem, namely that the right of the surrogate mother to retain the child would breach the constitutional rights of the surrogacy recipients who had provided her with their genetic material. In my view, this is not a major problem, as such parents could be considered donors. The more serious problem is that, from the very outset, surrogacy contravenes fundamental values of human civilisation and adversely affects all participants: the surrogate mother, the adoptive parents and the child.

Some of the adoptive parents are not married or live without a partner. While the Family Code permits surrogacy arrangements to be concluded only by married couples, the Russian courts took an even more “liberal” position and allowed any person, even a fertile woman, to obtain a child in this way. This creates, in my view, a serious problem with regard to State-authorised human trafficking.

I believe that in order to prevent the moral and ethical degradation of society, the Court should support value-based actions and not hide behind the margin of appreciation. These values (dignity, integrity, equality, inclusiveness, curiosity, self-realisation, creativity, knowledge and culture) are not in conflict with respect for private or family life. Respect for family life, through the existence of a biological link, was a decisive criterion in the previous surrogacy cases against France, namely Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)) and Labassee v. France (no. 65941/11, 26 June 2014), which were decided in favour of the applicants. The lack of a biological link is also a central point of the judgment in the present case; however, if surrogacy is not in principle compatible with the concept of fundamental rights, it should be counterbalanced by an individual penalty and a public debate to prevent such a practice in the future.

I am satisfied that in the present case the Court has taken a first step towards placing greater emphasis on values rather than on the margin of appreciation in “ethical” cases (I ought to mention another recent Grand Chamber case, namely Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, 15 November 2016)). It failed to do so in the above-cited Lautsi and Others case or the Parrillo v. Italy case ([GC], no. 46470/11, ECHR 2015). Now the Court is really becoming new.

It is very difficult to choose between respect for privacy and interference with the exercise of this right for the sake of protecting morals, given that moral categories are not precise. However, when moral standards are linked to human values, the decision becomes more substantiated in a long-term perspective. This is because values are desperately needed for the progress of society.

Ultimately, surrogacy presents one of those challenges when we must ask ourselves who we are – a civilisation or a biomass? – in terms of the survival of the human race as a whole. The comparative review on surrogacy shows that surrogacy is tolerated in the majority of member States, and hence this phenomenon was not even interpreted from the above perspective. I presume that the real answer lies somewhere in the middle: the civilised nations constitute the basis of international law, and surrogacy does not impede the civilised development of nations. However, if one takes into account the numbers of those involved, directly or indirectly, in any forms of this anti-social way of money-making, whether lawful or not, the real scale of the problem would be impressive. When social solidarity is not encouraged or effectively protected in practice by the authorities (who merely limit themselves to declarations in official documents), this raises the problems of social discrimination and inequality, which may lead to social destabilisation or degradation, and this threat should not be underestimated.