The European Court of Human Rights and Technological Development. The Issue of the Continuity of the Family Status Established Abroad Through Recourse to Surrogate Motherhood

Surrogate motherhood is one of today’s controversial issues. It is debatable whether or not surrogacy is consistent with human rights. Consequently, State reactions to surrogacy range widely. People from countries where surrogacy is banned or strictly regulated have been increasingly resorting to surrogate motherhood abroad. Hence the question about the continuity of the family status created abroad through surrogacy. Also the European Court of Human Rights (ECtHR) has dealt with that problem, mainly in the Mennesson, Labassee, and Paradiso et Campanelli cases. On the one hand, the ECtHR was reluctant to determine whether the right to respect for private and family life entails a right to recognition of the legal parentage established abroad through surrogacy as well as to find a basis for the continuity of the family status. On the other hand, the ECtHR abstained from crucially relying on the margin of appreciation doctrine. The author argues that the technological nature of contemporary surrogate motherhood is the reason for the hesitance of the ECtHR.