Surrogacy Arrangements and the Best Interests of the Child: The Case Law of the European Court of Human Rights

Abstract

INTRODUCTION The chapter begins with a comprehensive albeit brief overview of the case law of the European Court of Human Rights (ECtHR) on cross-border surrogacy (section 2). This is followed by a detailed analysis of the ECtHR's approach to the recognition of the legal parent-child relationship established abroad as a result of cross-border surrogacy (section 3). The focus of the chapter is on the problem of legal parenthood in the cross-border surrogacy context, with a particular emphasis on two key themes that arise in this context: the link between legal parentage and genetics, and the distinction between altruistic and commercial surrogacy. Throughout the analysis, the role of the best interests of the child principle in the specific context of the recognition of legal parentage established abroad through cross-border surrogacy is explored. The chapter concludes that, by prioritising the best interests of the individual child concerned, the ECtHR's recognition of legal parenthood in cross-border surrogacy undermines the principle of the best interests of the child generally. CASE LAW OVERVIEW Existing case law of the ECtHR on cross-border surrogacy can be placed into three broad categories, depending on the core legal issue that was dealt with in the particular case: (1) recognition of a legal parent-child relationship established through surrogacy abroad; (2) removal of the child from the intending parents; and (3) travel restrictions on children born through cross-border surrogacy. RECOGNITION OF A LEGAL PARENT-CHILD RELATIONSHIP ESTABLISHED ABROAD Mennesson v France and Labassee v. France The ECtHR addressed the issue of the recognition of a parent-child relationship established abroad in the context of cross-border surrogacy for the first time in the joint cases of Mennesson v. France and Labassee v. France . The cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of cross-border surrogacy and their intending parents. In both cases the intending parents were a married heterosexual couple. The children were conceived using the intending fathers ‘sperm and donor eggs. Court orders made in California and Minnesota respectively ruled that the intending parents were the children's legal parents.