12.12.2022
In her working paper, the author, Meiraf Tesfaye, examines the established principles of the European Court of Human Rights in relation to the applicability of the right to private and family life, as guaranteed by the European Convention on Human Rights, in the use of assisted reproductive technologies for procreation.
Because of divergent views on the ethics of surrogacy arrangements and the lack of consensus among states in that regard, cross-border surrogacy has become an increasingly sought after means of family creation for infertile persons. National courts have mainly resorted to private international law rules to recognize parentage determinations of foreign courts in cases where national laws prohibit one or all forms of surrogacy. At regional level, the European and Inter-American Courts of Human Rights have passed judgments that reinforce this practice. However, in post-birth considerations for recognition of parentage, genetic link of the surrogate child with one or both intending/intended parents is required by most national laws and even by regional courts. The author argues that this requirement defeats the very purpose of surrogacy arrangements to cure fertility problems as most infertile persons are unable to make a genetic contribution when entering surrogacy arrangements. In the author’s opinion, the pilot judgment on genetic link by the European Court of Human Rights in the case of Paradiso and Campanelli v. Italy has narrowed down the meaning of family life under Article 8 of the European Convention on Human Rights and limited its applicability and protection in relation to certain infertile persons causing a difference in treatment of completely infertile persons.
Meiraf Tesfaye is PhD researcher at the Åbo Akademi University Institute for Human Rights. The working paper is published in the Institute for Human Rights Working paper series, which presents research work in progress.
Contact: Meiraf.Tesfaye@abo.fi