Scholars advance the argument that the ECtHR should play an active role in mitigating the issues posed by the blanket ban on surrogacy across European States and the consequential rise of cross-border surrogacy cases. As the Court has acknowledged the existence of the right to respect for one’s decision to become a parent (Dickson v UK [2007]; Evans v UK [2007]), it is argued that this should extend to surrogacy cases in light of a coherent and accurate interpretation of human dignity, autonomy, and greater scrutiny of the margin afforded to States in such cases. Such an approach seems to be consistent with the ECtHR case law, as noted with regard to some legal aspects by Judge Jelić (in her dissenting opinion in the case of AM v Norway), as well as national and international trends toward recognition of the right to become a parent and reproductive rights in general. Further to the discussion in Part 1 of this blog, the questions can be posed as to whether the ECtHR’s decision in AM v Norway protects the actual best interest of the child, as well as what legal safeguards should there be to protect unconventional families and prevent the current situation which ‘leads to a situation unfairly penalising individuals biologically unable to procreate’ (Judge Jelić, [46]).

Judge Jelić noted in her dissenting opinion that the Court in AM had only focused on the private life aspect of Article 8 ECHR, instead of the family life aspect of that Article [30-32]. The Judge underlined the missed opportunity to assess the proportionality of the interference with intended mother’s family aspect of the right, referring to applicant’s interest in developing family relationships as per Marckx v Belgium [31]; recognition of family life being dependent on the ‘real existence in practice of close personal ties’ (Paradiso and Campanelli v Italy [140]);  and the principle that ‘[w]here there is no legal recognition between a child and his or her parents, the Court observes the existence of de facto family ties’ (Johnston and Others v Ireland [56]).

The decision seems curious even when looking at the doctrine of the child’s best interest due to the visible overlooking of the importance of a child becoming familiar and having an existing relationship with an intended parent from the very beginning of the pregnancy as well as the strengthening of this bond (which had already been forged between the child and the applicant).

In fact, Judge Jelić considered that the Court had failed to take into account the de facto family situation and several factual aspects which would have been relevant to the matter at hand, including recognition of the birth certificate, principles on the best interest of a child, as well as the issues with the domestic interpretation of the couple ‘raising a child together’ [33-42].

The Court failed to account for the State’s refusal to correctly apply relevant case law and a varied approach to the current case due to different marital status which resulted in discriminatory treatment of the applicant [47]. The ECtHR jurisprudence clearly states that differing treatment on the grounds of birth within or out of wedlock could only be made if very weighty reasons existed (Sahin v Germany; Mazurek v France; Camp and Bourimi v the Netherlands). Such reasons, however, did not exist in the analysed case. Not taking into account relevant case law resulted in an arguably unjust and discriminatory outcome towards the applicant based on flawed and fragmented legal analysis.

The majority of recent cases, including growing recognition of the rights of LGBTQ+ community members, demonstrate that the ECtHR is awarding increasingly more rights to non-conventional family constellations and people with differing sexual orientations or identities [49]. Some of this case law could be relevant and applied analogously to the AM matter, including X and Others v Austria; Salgueiro da Silva Mouta v Portugal, or EB v France. This lack of general consistency in the Court’s jurisprudence is therefore curious. As Judge Jelić rightfully noted, it is the Court’s role ‘to afford equal protection to all the citizens of its Contracting Parties and to adapt, in line with the “living instrument” doctrine, to new emerging social concepts’ [50].

Overall, the visible asymmetry of rights and protections in the very particular situation of designated mothers’ results in the lack of consideration of gender equality as well as general equitability, such as in the discussed case. This discussion raises further questions concerning the meaning of family and why a more holistic approach to what its definition entails is merited with special attention paid to the so-far overlooked rights of the intended mothers. Similar concerns should be considered in light of same-sex couples where only one or neither of the parents are biological ones and can only be classified as ‘intended’ parents – especially in light of the recent efforts of States (at least in the European context) to recognise the uniquely vulnerable position of selected groups of individuals, and the particular threat of having their rights violated as a result of their protected characteristics. It is high time that similar considerations entered ‘the chat’ on surrogacy cases.