Surrogacy, which raises several legal and ethical questions, imposes a delicate balancing of the different rights involved: the rights of children born from surrogacy, the rights of surrogate mothers, the rights of children waiting for adoption and the rights of intended parents. The situation becomes more complicated when it comes to cross border surrogacy, which involves serious issues of private international law relating to the recognition of foreign birth certificates or judgements, the choice of the law in establishing or contesting parentage, the question of jurisdiction and the role of the public order. European countries have taken different approaches: in some countries surrogacy is legal, in others it is prohibited or simply ignored. The Court of Justice of the European Union and the European Court of Human Rights both have adjudicated cases on cross border surrogacy. On 18 March 2014, two judgments came down from Luxembourg, C.D. and Z. A few months later, The European Court of Human Rights delivered three judgements: Mennesson v. France, Labasse v. France and Paradiso and Campanelli v. Italy. The two European Courts seem to take quite different approaches: while the Luxembourg Court has maintained strict adherence to the question at issue and the literal interpretation of the European legal instruments invoked, the Strasbourg Court has relied on the best interests of the child principle and on an evolutionary interpretation of the European Convention on Human Rights. The present paper asks whether there is a current dialogue between the European courts, like it was developed in the past in the field of fundamental rights, and if it may be developed in future, in order to reach a common standard of protection of the fundamental rights involved and to develop a system of shared principles and values which may be used as point of reference for national judges and legislators as well as for negotiators of international conventions on surrogacy.
Surrogacy from the Luxembourg and Strasbourg perspectives: divergence, convergence and the chance for a future dialogue / I. Anrò. - Geneva : Geneva Jean Monnet Working Papers, 2016 May. (GENEVA JEAN MONNET WORKING PAPER)
Surrogacy from the Luxembourg and Strasbourg perspectives: divergence, convergence and the chance for a future dialogue
I. Anrò
2016
Abstract
Surrogacy, which raises several legal and ethical questions, imposes a delicate balancing of the different rights involved: the rights of children born from surrogacy, the rights of surrogate mothers, the rights of children waiting for adoption and the rights of intended parents. The situation becomes more complicated when it comes to cross border surrogacy, which involves serious issues of private international law relating to the recognition of foreign birth certificates or judgements, the choice of the law in establishing or contesting parentage, the question of jurisdiction and the role of the public order. European countries have taken different approaches: in some countries surrogacy is legal, in others it is prohibited or simply ignored. The Court of Justice of the European Union and the European Court of Human Rights both have adjudicated cases on cross border surrogacy. On 18 March 2014, two judgments came down from Luxembourg, C.D. and Z. A few months later, The European Court of Human Rights delivered three judgements: Mennesson v. France, Labasse v. France and Paradiso and Campanelli v. Italy. The two European Courts seem to take quite different approaches: while the Luxembourg Court has maintained strict adherence to the question at issue and the literal interpretation of the European legal instruments invoked, the Strasbourg Court has relied on the best interests of the child principle and on an evolutionary interpretation of the European Convention on Human Rights. The present paper asks whether there is a current dialogue between the European courts, like it was developed in the past in the field of fundamental rights, and if it may be developed in future, in order to reach a common standard of protection of the fundamental rights involved and to develop a system of shared principles and values which may be used as point of reference for national judges and legislators as well as for negotiators of international conventions on surrogacy.File | Dimensione | Formato | |
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