Donor assisted reproduction and surrogacy in Belgium : equal acces to parenthood and policy coherence

Willems, Geoffrey [UCL] Sosson, Jehanne [UCL]

During the last few years, Belgium has demonstrated an ongoing concern for equal access of homosexual couples to parenthood. As far as lesbian couples are concerned, equality seems now to be achieved. The 2007 law on medically assisted reproduction allows fertility centers to define their own policies as to the access to artificial insemination and in vitro fertilization and lesbian partners may easily find a center agreeing to perform these techniques in view of realizing their parental project. When it comes to parenthood, the Belgium legislature recently allowed to establish a legal tie between the non-biological mother and the child directly by presumption (when the lesbian couple is married) or by recognition or judicial establishment (for unmarried couples). Things remain different for gay couples, in the absence of any legal regulation of surrogacy. Nevertheless, since surrogacy is not forbidden, at least two Belgian fertility centers accept to perform surrogacy for gay couples. Moreover, Belgian courts now generally accept to grant applications tending to establish parenthood through adoption. This contribution suggests that, for the sake of equality and coherence, the legislature should clearly affirm the principle that contractual commitment is the fundamental cornerstone of legal parenthood in the ART context for heterosexual couples as well as for (all) homosexual couples and for insemination and in vitro fertilization as well as for surrogacy.