The Case-Law of the European Court of Human Rights in the Field of Cross-Border Surrogacy: In the Best Interests of the Child?

Abstract

Surrogacy is prohibited in many European states. However, such a ban is not global. This can create problems when individuals from states where surrogacy is prohibited travel to other states where it is allowed and become legally recognised parents of children born through surrogacy in the latter states. The implications of cross-border surrogacy come into reality when the intended parents return with the child to their home state where surrogacy is prohibited and request for the legal recognition of the parent-child relationships. The home state might not recognise the parent-child relationships established abroad, which causes legal uncertainty for the child. Due to conflicting laws of states, children born through cross-border surrogacy are at risk of becoming de facto parentless and stateless if their relationships with the intended parents are not legally recognised. This can have severe implications for the child’s right to identity, cf. Art. 7 and Art. 8 of the Convention on the Rights of the Child (CRC) and Art. 8 of the European Convention on Human Rights (ECHR), which includes the legal parent-child relationship, right to nationality and inheritance rights. Furthermore, this situation imposes risks for the best interests of the child, cf. Art. 3(1) of the CRC.
The European Court of Human Rights (ECtHR) has considered several cases in the field of cross-border surrogacy where member states that prohibit surrogacy have refused to recognise parent-child relationships following cross-border surrogacy, which have been legally established abroad. According to the Court’s case-law, the child’s best interests under Art. 3 of the CRC and the child’s right to identity and private life under Art. 8 of the ECHR, require that the parent-child relationships, between the child and both the intended parents, are legally recognised following cross-border surrogacy, where the child has a genetic link with at least one of the intended parents. On the contrary, such an obligation does not exist when a child born through cross-border surrogacy is not genetically related to the intended parents. Accordingly, the ECtHR makes a clear distinction between children’s legal status with regard to their relationship with the intended parents depending on whether there is a genetic link between them. This leaves children who are not genetically related to at least one of their intended parents in a position of legal uncertainty in relation to their right to identity under Art. 7 and Art. 8 of the CRC and Art. 8 of the ECHR.
The thesis examines the leading cases of the ECtHR in the field of cross-border surrogacy from a child’s perspective by viewing whether and to what extent the Court applies the principle of the best interests of the child under Art. 3(1) of the CRC. Furthermore, the thesis examines whether the requirement of a genetic link, between the child born through cross-border surrogacy and at least one of the intended parents, for the legal recognition of the parent-child relationships is in accordance with the best interests of the child under Art. 3(1) of the CRC.
The thesis puts forward the main argument that the overall approach of the ECtHR in cross-border surrogacy cases is not centred around children’s rights, as it does not protect the best interests of children who do not have a genetic link with at least one of their intended parents. Furthermore, the thesis argues that the requirement of a genetic link for the legal recognition of the parent-child relationships following cross-border surrogacy is not in accordance with the best interests of the child, cf. Art. 3(1) of the CRC. The negative impact of the non-recognition of a legal relationship between the child and the intended parents is the same whether or not a genetic link exists between them and affects the child’s rights in the CRC, particularly, the right to identity, cf. Art. 7 and Art. 8 of the CRC. Moreover, according to research in the field of psychology, the absence of a genetic link does not seem to interfere with the development of the child. In this regard, the quality of the parent-child relationships seems to have greater importance for children’s positive development and well-being than the existence of a genetic link.
The thesis concludes that the ECtHR should abandon its distinction between children born through cross-border surrogacy on the grounds of whether there is a genetic link between them and at least one of their intended parents. By broadening the identity concept under Art. 8 of the ECHR, by including the children’s relationships with their non-biological intended parents within that concept, the Court could ensure the best interests and rights of all children born through cross-border surrogacy regardless of the existence of a genetic link. Emphasis should be on the children’s best interests and their right to identity and private life, irrespective of whether they have a genetic link with one of their intended parents. Children must not be made responsible for the conduct of their intended parents of circumventing domestic prohibitions on surrogacy and the way they were born into this world.

• author: Grétarsdóttir, Margrét María
• supervisor: Anna Bruce
• organization: Department of Law; Faculty of Law
• course: JAMM07 20231
• year: 2023
• type: H2 - Master's Degree (Two Years)
• subject: Law and Political Science
• keywords: European Court of Human Rights Cross-border Surrogacy
• language: English
• id: 9135884
• date added to LUP: 2023-09-01 13:27:38
• date last changed: 2023-09-01 13:27:38