University of Limerick
Browse

Accommodations of private and family life and non-traditional families: the limits of deference in cases of cross-border surrogacy before the european court of human rights

Download (1.12 MB)
journal contribution
posted on 2023-11-21, 11:44 authored by Lydia BrackenLydia Bracken

The European Court of Human Rights (ECtHR) case law on cross-border surrogacy establishes that a ‘general and absolute impossibility’ of obtaining recognition of the relationship, legally established in another country, between a surrogate-born child and their intended parents will violate the child’s right to respect for private life. This approach requires States to accommodate familial bonds created through cross-border surrogacy and limits the margin of appreciation available to States to determine their national response. In recent case law, the ECtHR has adopted an interventionist approach in respect of national decision-making and has gone further than might be expected under the principle of subsidiarity. Examination of the emerging body of jurisprudence on cross-border surrogacy, however, reveals a preference for ‘traditional’ family formations, with the ECtHR tending to adopt a less interventionist and more deferential approach to national decision-making where the family at the centre of the case deviates from the structure of the family reflected in the seminal cross-border surrogacy case of Mennesson v France App no 65192/11 (ECtHR, 26 June 2014). This approach leads to inconsistency in the cross-border surrogacy case law as it creates something of a moving target for the vindication of children’s rights in ‘less traditional’ family forms.

History

Publication

Medical Law Review 00, 1–17

Publisher

Oxford University Press

Sustainable development goals

  • (16) Peace, Justice, and Strong Institutions
  • (15) Life On Land

Department or School

  • Law

Usage metrics

    University of Limerick

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC