The Development of Case Law on Parental Rights and Surrogacy at the European Court of Human Rights

Absztrakt

The emergence of assisted reproductive techniques (ART) has sparked ethical and moral dilemmas concerning family, parenthood, and child rearing. Consequently, the most controversial technique, surrogacy, and the legal and human rights implications of cross-border surrogacy cases were brought before the European Court of Human Rights (Court). The right to become a parent is an inappropriate focal point in surrogacy debates, as it prioritises adult-centred reproductive claims over the best interests of the child. The Court’s case law incorporated a “process-based approach” in the initial leading cases, although recent case law suggests a development of value-based assessment, which might not lie in line with the sovereignty of the member states to regulate sensitive aspects of family law and ART. The fact that obtaining parental rights motivates parents to engage in surrogacy, and the willingness of the Court to facilitate this in cases of surrogacy involving cross-border recognition of parental rights, may spark tension between national laws on surrogacy based on national values.