The Evolution of Crossborder Surrogacy in the Case Law of the European Court of Human Rights

Over the past couple decades reproductive tourism has grown from a niche practice to an increasingly common phenomenon, whereby infertile couples go abroad to take advantage of assisted reproductive technologies not available to them in their country of origin, due to the restrictive legal order of their own country. This naturally leads to subsequent moral, ethical and legal complications and legal uncertainty, especially when it comes to the legal recognition of parentage. We can find very diverse approaches to surrogacy across the world, from prohibitive to permissive and non-regulating legal regimes with a multitude of approaches to commercial and altruistic surrogacy within these categories. Even across Europe, a region built on shared values and common approaches to fundamental human rights, surrogacy remains a divergent territory. Cross-border surrogacy cases demonstrate very complex dilemma of the European Court of Human Rights' role in the European legal order, and it bears examining whether with the rise of cross-border surrogacy cases, it will be feasible to maintain such distinct domestic legislations across State Parties to the Convention, or if the impact of the decisions of the ECtHR will lead to unified human rights standards regarding international surrogacy. While theoreticians debate the viability of an international convention in this area, courts around the world have to face whether to recognise an agreement that takes place legally in another jurisdiction, but which is contrary to their own laws. This paper will consider developments across Europe in the approach to foreign surrogacy arrangements, in particular focusing on the recent decisions of the European Court of Human Rights and their potential impact on national legislative approaches.