15 July 2026 was the set deadline for the implementation of EU Directive 2024/1712 (herein after the Amended Directive), amending its predecessor EU Directive 2011/36 on preventing and combatting trafficking in human beings and protecting its victims. Article 2 of the Amended Directive now mandates Member States to explicitly criminalize exploitation of surrogacy, forced marriages and illegal adoptions as forms of exploitation in the context of human trafficking and put into place mechanisms to improve prevention, detection and punishment of the crimes when committed (See for instance the Amended Directive at Art.5-11 & Art.17-19).
Previous blogs have critiqued Italy’s interpretation of the mandate which essentially led to the extension of Italy’s criminalization of domestic surrogacy to all international surrogacies wherever they occur. I have also shown elsewhere that the mandate of the EU Amended Directive would not justify unilateral national denial to access all/commercial international surrogacy because such universal bans violate the right to private and family life of European intending parents and their surrogate children under Article 8 of the ECHR (pp.11-18).
Turning the analytical lens inwards, this blog examines the Finnish Government proposal to Parliament for an Act amending Chapter 25, section 3 & 3a of the Criminal Code and certain other acts (HE 127/2026) transposing the amended Directive and the Working Group’s report that was recently submitted to the Finnish Parliament. It aims to highlight the innovative interpretation of the mandate to criminalize ‘exploitation of surrogacy’ despite total national bans on surrogacy which are based on human dignity concerns.
Finland’s Domestic Surrogacy Legal Landscape: 1991 to Present-day
Between 1991–2007, altruistic surrogacy was practiced in Finland on a limited scale at four clinics (p.8). Because there were no specific laws on surrogacy or Assisted Reproductive Technologies (ART), medical providers relied on general health care legislation and professional ethics codes in self-regulating rules on access and use. This may have contributed to the limitation of access to treatments to heterosexual couples where the woman was suffering from medical infertility manifesting mainly through the absence of or defects in the uterus.
The National Advisory Board on Social Welfare and Health Care Ethics (ETENE) which operates under the Finnish Ministry of Social Affairs and Health, has contributed significantly to the Finnish legal landscape in relation to surrogacy since its establishment in 1998. In its 1999 Advisory Opinion the 2002 Bill on ARTs (HE 76/2002), ETENE stated that the Bill involves ethically problematic issues that should be further scrutinized, without making specific mention or opposition to surrogacy. However, in its 2001 Memorandum on the Bill on Infertility Treatment (p.5), it stated;
‘[…] the legal rights of the child to be born, the surrogate mother and the child’s parents cannot be sufficiently well safeguarded. Consequently, ETENE finds that while there could be highly valid medical justifications for this practice in individual cases, the act should impose a prohibition on surrogacy.’ (emphasis added)
In 2007, Act on Fertility Treatments (1237/2006) came into force imposing an indirect ban on all forms of domestic surrogacy. Section 8(6) of the Act states that fertility treatment cannot be given if there is a reason to believe that the child will be given up for adoption which in effect bans all domestic surrogacy. Some of the reasons given in the Proposal include concerns about the vulnerable position of potential surrogates and possible pressure to undergo treatments, physical and psychological risks to the surrogate’s health, risks of commercialization and exploitation and concerns about splitting motherhood. (Bill on ARTs (HE 3/2006), sec.3.2)
In 2011, the Finnish Ministry of Justice asked ETENE for another position statement on the desirability of regulating surrogacy in Finland since its total ban four years earlier. In a vastly more detailed Statement, ETENE shifted its position and provided a more nuanced approach to surrogacy from the perspective of not only the rights of the surrogate mother and the child but also that of infertile persons/couples and their wishes to become genetic parents though use of ART including surrogacy. It concluded in relation to altruistic, non-commercial surrogacy that;
‘ETENE finds that the positive impacts of allowing surrogacy treatments outweigh the negative impacts of problems related to the treatments or of banning the treatments, and after ethical consideration, it finds that in certain individual cases, treating fertility by means of surrogacy could be ethically acceptable.’ (p.6)
The Position Statement was also as clear on commercial surrogacy and extensively narrates the risks surrounding its legalization as a potential violation of human dignity even with the consent of the surrogate (ETENE Position Statement, Appendix 2, p.5).
In this relation ETENE concludes:
‘The surrogate mother’s motivation must be altruistic. She goes through the treatment process to enable an infertile couple to have a child. No commercial aspects or abuse between the parties must be associated with surrogacy.’ (emphasis added)
Though the 2007 ban remains in effect in Finland, Finnish discussions on (mainly altruistic) surrogacy continue with the latest development on potential legislative changes in 2023 wherein a Report contemplated desirability of regulating altruistic surrogacy in accordance to the 2019 Government Program with no other concrete measures indicating changes to the current absolute domestic prohibition (p.93).
The EU Directive 2024/1712: Vague Obligations; Chaotic Interpretations
The revision of the EU Anti-Trafficking Directive began with the European Commission’s Proposal to amend Directive 2011/36/EU on trafficking in human beings of 19 December 2022, following the European Parliament resolution on implementing the Directive a year earlier. Notably, earlier proposals sought to expand the non-exhaustive list of exploitation explicitly mentioned in the Directive to include forced marriage and illegal adoption (2022 Proposal, pp.2,6 &9; see also 2021 Proposal; p.5). Inclusion of surrogacy in the context of human trafficking was not mentioned until 2023 in a Report by the European Parliament proposing amendments to the 2022 Commission proposal where it added ‘surrogacy for reproductive exploitation’ into Article 2(3) which lists the illegal forms of exploitation. Because the EU Commission had already released its fourth Progress Report in the fight against human trafficking, the Evaluation Report for the Proposal and Impact Assessment Report in connection to the amendments before any mention of criminalization of surrogacy, the scope and content of the mandate was barely scrutinized.
This excluded any empirical evaluation of the problem for European countries with MEP’s describing the process as a ‘rushed’ debate with little time to explore the complexities of the issue in depth or to ensure a broader debate with specialists and relevant stakeholders on the issue’. When seen in light of Europeans MEPs’ decade-long condemnation of surrogacy, the prevalent discord in interpretation becomes a rather obvious outcome of the process. To add fuel to the fire, the EU Amended Directive’s mandate on requires explicit criminalization of ‘exploitation’ of surrogacy in lieu of the more ‘on the nose’ wording it used for the other two inclusions it made: ‘illegal’ adoptions and ‘forced’ marriages. It is only in the non-binding recital of the Amended Directive that the meaning and scope of this mandate is clarified: it targets those who coerce or deceive women into acting as surrogates (Recital 6 & 11).
This ambiguity was used by Italian legislators who took this mandate as a carte blanche to liberally extend criminalization to all international surrogacies as a violation of human dignity. Elsewhere, I have also analyzed the Dutch Draft Proposal for transposition as a point of reference to caution against an emerging pattern of replicating restrictive national laws on international surrogacy among the few EU States that have introduced amendments by appealing to fundamental protections such as the inviolability of human dignity (Art.1, Charter of Fundamental Rights of the European Union).
Finland’s Interpretation of ‘Exploitation of surrogacy’: Separating National Morals from Transnational Crimes
In Finland, human trafficking is criminalized in Chapter 25, section 3 & 3a of the Criminal Code regarding crimes against liberty, with the aggravated form, i.e., aggravated human trafficking, criminalized in Section 3a. The purposes of human trafficking contained in Section 3 include putting another person at risk of sexual exploitation as defined in the provision, forced labor, forced marriage or a similar union, or other conditions that violate human dignity, as well as the removal of organs or tissues.
As noted above, the complete ban on surrogacy in Finland and opposition to commercial ones are partly owing to linking compensation/profiting to the surrogate to exploitation in violation of human dignity. However, the criminal rule on human trafficking makes no mention of surrogacy which the Proposal emphasizes when examining the scope of the criminalization mandate (p.24). Because of this, the report and its accompanying proposal first examine whether surrogacy falls within the scope of national human trafficking code and should be included under ‘other conditions that violate human dignity’. The Working Group Report (hereinafter WGR) and Proposed Bill (HE 127/2026) determined that surrogacy under certain circumstances falls within the meaning of the section and must be explicitly added to satisfy the criminal rule of precision (HE 127/2026, pp. 23; WGR p.37).
In determining the scope of the intersection, given that all surrogacy involves a person becoming pregnant and giving birth to a child for another person, the documents address whether it inherently meets the criterion of ‘conditions that violate human dignity’ regardless of the accommodation, healthcare and other conditions that would be associated with the surrogacy arrangement (Proposal p.24; Working Group Report, p.37).
In answering this question, noting that there is no international or European consensus on the matter, the proposal (and WGR) turns to Finnish case-law on human trafficking and international surrogacy during the period between 2012-2020. (for instance HE 127/2026 pp.15-16 & WGR p.27) Although one cannot delve into all aspects of the Proposal’s excellent analysis, one Finnish case referenced to by the Proposal (originally in the 2023 Report on legalizing domestic altruistic surrogacy) makes the necessary point that the Helsinki Court of Appeal has already answered whether international commercial surrogacy falls within the criminalized act under Chapter 25, section 3 & 3a of the Criminal Code.
Namely, in Helsinki Court of Appeal (Decision No. 2064, July 2013), where a Finnish couple who underwent a commercial surrogacy arrangement in India and were refused recognition of legal parenthood in Finland the Court ruled partly as follows;
‘[…] Although surrogacy arrangements involving compensation can be seen as problematic, especially from the perspective of the surrogate’s human dignity, paying such compensation cannot be considered to violate the child’s human dignity in the same way as paying compensation in the context of adoption. Since it is evident that the compensation was agreed upon with the surrogate before the arrangement began, and since the child did not originate from the gametes of the surrogate or her spouse, it is also not reasonable to assess the effect of the compensation on the surrogate’s free will in the same way as in a situation where consent is given in exchange for compensation’ (para 26, emphasis added)
This analysis supported the conclusion that despite the ban on domestic surrogacy, national law still does not automatically replicate its national principles in examining legal recognition questions on international surrogacy.
The Proposal then addresses the scope of the Directive’s mandate itself to examine the scope of the amendment necessary to meet its requirements (HE 127/2026, pp.19-20, 64-65). It convincingly argues that the vague wording of the text, ‘exploitation of surrogacy’, must be seen in light of its recital which is that the targets of criminalization are those who force or mislead a woman into acting as a surrogate unless the potential surrogate is a child in which case the malicious intent of the perpetrator can be presumed. (HE 127/2026, p.24, WGR, pp. 37-39)
However, in other instances, it astutely argues that if surrogacy had been included without the additional term ‘exploitation,’ the wording would have been ‘exploitation is considered to be at least – – surrogacy,’ which could have created the impression that surrogacy itself is always exploitation.(HE 127/2026, pp.64-65; WGR,pp.92-93). It highlighted that a finding of the crime of human trafficking outside of context of a child surrogate therefore requires the finding of malicious intent on part of the user; a requirement also present under Chapter 25, Section 3 of the Criminal Code requiring ‘dolus specialis’; i.e., that the perpetrator must have acted specifically to bring another person into circumstances in accordance with the provision. (HE 127/2026, p.21 quoting HE 34/2004 , p. 93, WGR, pp.92-93).
To clarify the vagueness of the binding portion of the obligation, the Proposal made another important change; Instead of the ‘exploitation of surrogacy’ it proposed that section 3(1) of the Criminal Code on trafficking in human beings, be amended in to explicitly add exploitation of ‘surrogate mother’. This limits criminalization to only those surrogacies that target and exploit the surrogate therefore inserting the need for subjective finding of a violation in each case much clearer.
Conclusion
Despite Finland’s national blanket ban on surrogacy, its approach to transposition shows that States can make a legal distinction between national policy-based restrictions and international crimes. The grim reality is that these rules do not actually prevent international surrogates from being victimized by predatory human trafficking rings, but they can offer solutions after the fact (other than through general deterrence). The Hague Conference on Private International law (HCCH), under its Parentage/Surrogacy Project, was indeed working towards a private international law convention to establish such rules. After working on the instrument for 14 years, the Expert Working Group finalized the work on the Convention for legal parentage and legal recognition following use of ART including surrogacy, which was framed within a set of minimum human rights standards.
In March 2026, the HCCH abruptly decided not to advance the draft to the Special Commission reasoning was that there were ‘fundamental differences and failure to reach a consensus’. This is a stark reminder that the European Court must use future case-law to clarify the scope of Article 8 without succumbing to States’ ideology driven wide interpretation to justify excluding non-traditional families from protection.
