Constitutional reform in Slovakia: ban on surrogacy and reaffirmation of national sovereignty in bioethics

The amendments include:

1. preserving Slovakia's national sovereignty over ‘issues of national identity,’ such as ‘cultural and bioethical issues relating to the protection of life and human dignity,’ but also to private and family life, marriage, parenthood and family, public morality, personal status, culture and language, as well as decisions on issues related to health, science, education, training, personal status and inheritance (Article 6 of the amended Constitution, paras. 6-7);
2. the prohibition of surrogacy agreements aimed at ‘bearing a child for another person’ (Article 15, para. 5);
3. the guarantee of equal pay for men and women (Article 36, para. 3);
4. the recognition of men and women as ‘parents of a child’ (Article 41, para. 2);
5. the possibility of adoption by married couples or one of the members of the couple, or by a single person in exceptional cases where this is in the interests of the child (Article 41, para. 5);
6. the recognition of parents' rights in relation to the education and training of children on matters relating to intimate life and sexuality, and the inclusion of health protection and abuse prevention in the teaching of children, ‘in a manner appropriate to their age’ (Article 41(7));
7. the exclusive recognition of male and female genders as defined biologically (Article 52a).

From a bioethical perspective, it is worth noting the affirmation of national sovereignty in general and the prohibition of surrogacy in particular.

The prohibition of surrogacy comes at a time when this practice was previously in a legal grey area under Slovak law, as it was not authorised but also not subject to sanctions. The constitutional invalidity of surrogacy contracts – already provided for in family law – is unlikely to prevent the use of surrogacy in neighbouring countries, particularly Ukraine and the Czech Republic. However, this ban sends a strong signal, including at the international level, and echoes the recent recommendations of the UN Special Rapporteur on violence against women and girls in favour of a universal abolition of surrogacy (UN calls for global ban on surrogacy in the name of women's and children's rights). This amendment is also in line with the Casablanca Declaration, in which numerous international experts also call for an international treaty banning surrogacy.

As for the amendment on strengthening national sovereignty, this appears to be a reaction to certain attempts to standardise national practices in the field of bioethics at European level, particularly within the European Union (EU). This amendment is in line with the principles of subsidiarity and respect for the national identity of Member States, as provided for in the EU Treaties. In practice, this new constitutional provision could be invoked in the future by the Slovak Constitutional Court in possible disputes concerning the compatibility of certain European bioethics guidelines with the Slovak Constitution.

The representative of the European Commission in Slovakia said she had ‘taken note’ of this reform but regretted that the comments previously made by the Commission (particularly regarding the primacy of European law and the importance of guaranteeing the principle of non-discrimination) had not been taken into greater account by Parliament. Nevertheless, the Commission recognised that regulation of substantive family law issues ‘remains a prerogative of the Member States’.

As for the Venice Commission of the Council of Europe (European Commission for Democracy through Law), an independent advisory body responsible for examining constitutional reforms, it considered the provisions to be substantially in line with European law but regretted that broader consultations could not have been conducted before the vote.