Towards an international consensus on cross-border surrogacy: the role of the European Court of Human Rights?

TL;DR

This article explores how the European Court of Human Rights could help create a unified approach to cross-border surrogacy by setting human rights standards.

Contribution

The article systematically analyzes ECtHR case law to propose a harmonized legal framework for cross-border surrogacy.

Findings

Cross-border surrogacy lacks a consistent international legal framework.

ECtHR case law can establish minimum human rights standards for surrogacy cases.

The best interests of the child principle is key to resolving surrogacy-related human rights issues.

Abstract

The article examines ways to address the problems of cross-border surrogacy, based on existing initiatives to create an international legal framework and the case law of the European Court of Human Rights (ECtHR). I will first outline the problems associated with cross-border surrogacy and describe efforts to overcome these problems by adopting an international treaty or universally accepted standards in this area. Then I turn my attention to the nature of the right to private and family life and the general conditions for balancing this right against various public interests. The remainder of the article lies in a systematic analysis of the case law of the ECtHR on cross-border surrogacy, which has the potential to harmonize national approaches by establishing a minimum standard of human rights protection. I pay particular attention to the principle of the best interests of the child, the interpretation of which is a decisive factor and can thus serve as a general starting point for the resolution of human rights cases arising from cross-border surrogacy.