Surrogacy in Europe: The Findings of the ECtHR and the Law Commissions’ Reform Proposals

In many contracting states of the European Convention on Human Rights, surrogacy is not a lawful practice. This leads many European citizens abroad to surrogacy-friendly destinations, which in turn causes problems when they return to their home country with their surrogate-born children. Domestic authorities are reluctant to recognise the child-parent relationship, created by an otherwise unlawful – domestically – practice, and they tend to not award the children their parents’ citizenship. Those affected have turned to the European Court of Human Rights to remedy this problem, which has led to an increasing number of judgments made by the Strasbourg Court. This chapter explores the case law of the European Court of Human Rights on surrogacy. Specifically, it identifies the emerging themes from this European case law, which show a clear preference for genetic connection with a vague application of the child’s best interests. This seeming European standard serves as a basis to assess the compatibility of the reform proposals in England and Wales and Scotland, with the European Convention on Human Rights. It is ultimately argued that this seeming standard is very low, due to surrogacy being unlawful in the States referred to the Court, which suggests a different application of the Convention’s standards in terms of surrogacy regulation in Great Britain.