SURROGATE MOTHERHOOD IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The European Court of Human Rights has already decided seven individual complaints and has given one advisory opinion under Protocol 16 to the European Convention on Human Rights on surrogacy related topics. The Court is still to rule on the internal regulation on surrogacy of any of the Member States, as its case law has only focused on secondary elements clearly linked to the transnational aspect of this worldwide phenomenon. Cases decided by the Court have always focused on the recognition of legal parentage between children born out a surrogacy agreement in a third country and their intending parents living a European country usually forbidding this type of arrangements. Even if the Court has only ruled on the recognition of legal parentage in cases of transnational surrogacy agreements, its case law clearly defines relevant rules to be applied by all Member States of the European Convention on Human Rights. In this case-law of the European Court, it should be noted that, in general terms, gender perspective has not been applied. This is especially serious if one takes into account the special role that women play in human reproduction.