Assessing the best interests of the child in cases of cross-border surrogacy: inconsistency in the Strasbourg approach?

Abstract

This article examines the approach of the European Court of Human Rights (ECtHR) to assessing the best interests of the child in three recent cases of cross-border surrogacy, namely Mennesson v France, Labassee v France and Paradiso and Campanelli v Italy. It is argued that these cases reveal inconsistency in the ECtHR’s assessment of the best interests of the child. In Mennesson and Labassee, the ECtHR found that the national authorities’ refusal to legally recognise the relationships between the children and the intended parents amounted to a violation of Article 8 ECHR, whereas no violation was found in Paradiso. A notable distinguishing feature of Paradiso was that there was no genetic relationship between the child and the intended parents, and it is this point that seemingly led the Court to assess the best interests of that child differently to the others.

Keywords:

• Cross-border surrogacy
• best interests
• Article 8 ECHR
• legal parentage

Notes

1. A comparative study conducted by the ECtHR in Menesson v France showed that, in 2014, surrogacy was expressly prohibited in 14 of the 35 Member States of the Council of Europe (other than France) that were studied. Mennesson v France, app. No. 65192/11, 26 September 2014 at para 78.

2. Protocol 15 of the ECHR adds a direct reference to the concepts of subsidiarity and the margin of appreciation to the preamble to the Convention.