Sara Tonolo

Surrogacy and the Right to Personal Identity Before the European Court of Human Rights: The Compatibility of the Public Policy Exception with the Requirements of the Article 8 of the ECHR

  • Abstract

Informations and abstract

Keywords: Surrogacy; Human Rights; Private International Law; Public Policy; Right to Personal Identity; European Court of Human Rights.

Surrogacy is a widespread practice for childless parents. Surrogacy laws vary widely from State to State. Some States require genetic parents to obtain a jurisdictional order to have their names on the original birth certificate, without the name of the surrogate mother. Other States allow to put the name of the intended parents on the birth certificate. In Italy and in other countries (e.g. France, Spain) all forms of surrogacy are forbidden, whether it be traditional or gestational, commercial or altruistic. Stepping back from three recent judgments issued by the European Court of Human Rights ("Mennesson v. France", application n. 65942/11, and "Labassee v. France", application n. 65941/11, both decided on 26 June 2014; "Paradiso e Campanelli v. Italy", application n. 25358/12, judgment of 27 January 2015), in the cases where national rules forbid the transcription of birth certificates for public policy reasons, specifically the prohibition of surrogacy, this Article aims at an analysis of the subject, dealing with the contrast between public policy on the one side and the fundamental right to identity as stated by art. 8 ECHR, on the other. The ECtHR affirms, in some way, that subverting the effectiveness of the prohibition of surrogacy may be justified by the best interest of the child. Anyway it is debatable if this fundamental principle ought to be read as an exception to the public policy clause or as a basic value of this.

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