Cross-border surrogacy and the European Convention on Human Rights: The Strasbourg Court caught between “fait accompli”, “ordre public”, and the best interest of the child

Abstract

Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. This article examines how the European Court of Human Rights (ECtHR) deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will demonstrated that the Strasbourg Court has developed a nuanced case law that leaves it in the first place to the national authorities to deal with the complex issue of surrogacy, whereby it is nevertheless clear that further to the Strasbourg case law even if legislators rule out the possibility of surrogacy on their territory, they will have to find solutions to “‘regularise”’ the de facto situation of the child, taking into account its best interests.