Weaknesses of the ECHR’s jurisprudence on surrogacy: the margin of appreciation, the best interests of the child and the genetic link

Abstract

The regulation of surrogacy is currently a heated debate at doctrinal level, with renowned jurists for and against, and an undoubted constitutional content. Aspects such as the dignity of persons, the socio-economic conditions of origin, fundamental rights and the sources of law are addressed. One of the most relevant elements is the jurisprudence of different judicial bodies, including that of the European Court of Human Rights, which is in constant dialogue with the institutions of the member states of the Council of Europe.

In deciding the cases that have come before it, the Strasbourg Court has had to strike a complex balance between the different interests at stake. On the one hand, there are the interests of the persons who, despite knowing that surrogacy is prohibited (or recognised as legally null and void) in their own country), enter into a surrogacy contract and thus socially become the parents of a child; alongside these are the child’s own rights, his or her best interests and the living conditions necessary for him or her to grow up normally.
On the other hand, there are the interests of the state, which pursue as a legitimate objective the protection of children born under this method and the protection of pregnant women. The ECHR has based its rulings on surrogacy on three main aspects: the national margin of appreciation, the best interests of the child and the existence or absence of a genetic link between the intended parents and the children born through surrogacy. In this article we analyse these three aspects, highlighting points which, from our point of view, present argumentative shortcomings, such as the absence of the enabling assumption, the differences with respect to previous case law in situations which have a certain similarity and finally, after defending that it is the genetic link which seems to be the true protagonist of the ratio decidendi, we raise the questions which we believe may appear in the relatively near future, if we take into account that surrogacy is a practice which is increasingly resorted to. In conclusion, we point out some alternatives that may help States to fight against this practice, in case they persist in the idea of not regulating it, and we point out some solutions that, from our point of view, may be effective.

Summary:
1. INTRODUCTION: SURROGACY IN CONTINUOUS DEBATE. 2. THE RECURRENT RECOURSE TO THE NATIONAL MARGIN OF APPRECIATION: REALITY OR A FLIGHT FORWARD? 3. THE BEST INTERESTS OF THE CHILD AT STAKE 4. CAN THE GENETIC LINK RESOLVE ALL SURROGACY ISSUES? 5. BY WAY OF CONCLUSION: ARE THERE ALTERNATIVES?