Roberto Baratta

Fundamental Rights and Recognition of "Status Filii" in International Surrogacy: Primacy of the Child's Interests

  • Abstract

Informations and abstract

Keywords: Fundamental Rights; Recognition of Status Filii ; Surrogacy Motherhood; Child's Interests

While focusing on the ECtHR's case-law on international surrogacy arrangements and namely on the "child primary right's" to obtain respect for his private life, the article intends to show how international human rights instruments can affect domestic law and its system of private international law. It argues basically that the Strasbourg Court approach, under Article 8 ECHR, is to be conceived as a judicial policy of "child first" implying a primacy of child's rights as the ultimate "point de repère" given that he or she is the most vulnerable. Respect for the right to private life requires that persons should be able to establish details of their identity as individual human beings, which includes filiation and the child's right to have an identity, as well as a name. Overall, the emphasis lies on the child's "primary" need to have his/her "status filii" recognized with respect to the biological father. Ultimately, the article advocates that private international law is to be shaped by means of interpretation to comply with international human rights obligations.

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