The European Convention on Human Rights and the Practice of the ECtHR in the Field of Gestational Surrogacy

Abstract

Background. The article focuses on the analysis of the case law of the European Court of Human Rights regarding gestational surrogate motherhood and the development of the bioethics issue in this area. It was established that the notion of "private life," regulated by Article 8 of the European Convention on Human Rights, guarantees everyone the ability to demand the establishment of their identity, providing for the possibility of establishing family relationships. It is highlighted that, despite the legal ban on the implementation of surrogate motherhood technology, to confirm the child’s identity, there is a need for official recognition of this kind of family relationship as indicated by other relevant relationships. In particular, the peculiarities of establishing parent-child relationships in the case of individuals applying for gestational surrogacy to exercise their reproductive rights are disclosed. The problem of legal regulation unification in the technological application of gestational surrogate motherhood is considered. A conclusion set regards the need to create an international legislative and regulatory framework useful for national governments, particularly in gradually banning the use of surrogate motherhood technologies. Attention is placed on international efforts focused to create an international legislative and regulatory framework that will provide recommendations useful to national governments, particularly in the gradual prohibition of surrogacy. The authors believe that the corresponding international agreement will constitute a legal framework for ensuring individual rights, freedoms, and health, the limitation to gestational surrogate motherhood services, and the observance of a uniform policy in this area. Methods: The methodological framework of the study incorporated a range of philosophical, general, and legal methods. The worldview-dialectical method of cognition made it possible to investigate the problem's social content and legal form, then to conduct a systematic theoretical and legal analysis of the practice by applying the judgments of the European Court of Human Rights. The diversity of legal certainty of the surrogate motherhood system’s legality in Europe, particularly in France, Italy, Iceland, Poland, and Norway, was investigated using the comparative method. With the help of a formal-legal approach, it analysed the content and peculiarities of applying the ECtHR practice. Results and Conclusions: We comprehensively considered the ECtHR legal positions on gestational surrogate motherhood and the bioethics development in this area. International efforts should be concentrated on establishing an international regulatory framework that will provide recommendations practical to national governments, particularly in the gradual prohibition of surrogacy.