Medically Assisted Reproduction and the ECtHR: The Evolving Case Law in an Evolving Field

This contribution explores key case law of the European Court of Human Rights in the field of medically assisted reproduction (MAR) as developed under Articles 8 (private and family life) and 14 (discrimination) of the European Convention on Human Rights (ECHR). In particular, the contribution is divided into two parts. First, it addresses the evolution of the case law in terms of access to MAR. It is observed that the Court has taken a cautious approach by largely respecting national restrictions on MAR techniques. Subsidiarity, cross-border travel and protection of non-traditional families are addressed as the key themes identified in the case law. Second, this contribution delves into the case law on recognising legal parenthood established by surrogacy abroad. Here, the Court has taken more drastic action to protect surrogate-born children when there is a genetic link between a (male) parent and the child by creating a subset of standards. This privileges families with a genetic link, it raises the issue of gender discrimination and further adds to the inconsistency of the Court’s approach to cross-border reproductive care. Through the exploration of the relevant MAR case law and the interpretation of Article 8 ECHR, this contribution ultimately argues that the Court has a greater role to play in addressing concerns about access to MAR and the unwillingness of States to deal with certain practices. This is in line with the (now weakened) nudge in S.H. and Others v. Austria, according to which States should keep under review this continuously evolving area of law. The novelty of this contribution is threefold. First, it provides a pivotal up-to-date account of key case law in this rapidly evolving field, by not simply describing but also identifying and criticising the trends in the Court’s MAR case law. Second, this contribution argues that, in the Court’s surrogacy case law, subsidiarity is better understood by moving away from the concept of margin of appreciation; instead, it is viewed through the lens of establishing a general principle/standard that is later refined via subsequent cases (case-based refinement). Third, it offers an updated and systematic review of the Court’s practice in light of Article 14, as gender discrimination regarding surrogacy has not yet been explored thoroughly within the ECHR system.