Surrogacy abroad: the ECHR recognises that States are entitled to “legal checks”

Publié le : 15 September 2014

In a decree announced on Thursday, 11 September, the European Court of Human Rights (ECHR) declared that “State authorities can legitimately carry out ‘legal checks’ before authorising the entry of a baby born as a result of surrogacy arrangements abroad“. 

 

The facts are as follows: A Belgian couple, who arranged a pregnancy with a surrogate mother in Ukraine, were refused a passport for their surrogate baby from the Belgian authorities. Based on their rights to family life, the Belgian parents decided to lodge an appeal before the ECHR in April 2013. However, shortly after the case was submitted to the court, the Belgian authorities decided to issue the documentation in question to the Belgian parents. The Court therefore deemed that the dispute “[should] be considered resolved“.

 

Whilst observing that “the Belgian authorities’ initial refusal to issue a travel document for the baby to enter Belgium […] had amounted to interference in the applicants’ right to respect for their family life“, the Court noted that ” ‘this interference had been provided for by law and pursued legitimate aims’, namely the prevention of trafficking in human beings, and the protection of the rights of the surrogate mother and the child“. An argument was also put forward by the European Centre for Law and Justice (ECLJ) – the centre which had been authorised to intervene as a third party in the procedure.        
The Court also reiterated that “the States had a relatively wide margin of appreciation in this area, particularly where the case raised sensitive moral or ethical issues“. Lastly, the judges stressed that the European Convention for Human Rights could not oblige the States to “authorise entry to their territory of children born to a surrogate mother” without the national authorities having a “prior opportunity to conduct certain legal checks“. 

 

As regards the decision, the ECLJ stated that such a decision “not only merited emphasising the fact that surrogacy raised sensitive moral and ethical issues and that there was no consensus regarding the importance attached to the issue at stake, but primarily that surrogacy presents risks that infringe the rights of the surrogate mother and child as well as the trafficking of human beings”. However, the ECLJ deplored the fact that the Court did not clearly state that “surrogacy is intrinsically contrary to human dignity and the fundamental rights of both women and children”.

Finally, the ECLJ stated that this decision had only limited impact in that it “dealt solely with the matter of obtaining travel documents caused [in the case in point] by the separation of the child from the applicants“.

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