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Home Articles posted by Ivana Isailović

The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

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