Surrogacy and the European Convention on Human Rights

Abstract

This thesis explores surrogacy and its possible protection under the umbrella of the European Convention on Human Rights (ECHR). The examination undertaken aims at providing a solution to the current problem of cross-border surrogacy due to the detrimental effects it might have, mainly on the resulting children. It does so by advocating for an ex ante solution whereby the ECHR framework is used to lift the blanket ban on surrogacy in European States. This way, it is argued, States would have to advance a lawful domestic surrogacy regulation, which could eventually lead to the decline of cross-border surrogacy cases.

In particular, the ex ante ECHR framework is examined through the outcome of a hypothetical referral to the European Court of Human Rights by individuals against a Contracting State with a blanket ban on surrogacy, claiming a violation of their right to respect for private and family life (Article 8 ECHR). The Court has acknowledged the existence of the right to respect for the decision to become a parent, which this thesis extends to surrogacy and argues that it should prevail against the blanket ban on surrogacy in the clash between the private and public interests involved.

In the course of this thesis, special consideration is given to the concept of human dignity within the Convention and the use of the ‘margin of appreciation’ doctrine, facilitating an understanding in order to interpret dignity coherently and advancing a framework in order to apply the margin of appreciation doctrine effectively. Finally, there is an examination of the need for an international convention on surrogacy through the lens of the ongoing Parentage/Surrogacy Project of the Hague Conference on Private International Law.