CYIL 2015

REPRODUCTIVE RIGHTS AND HUMAN DIGNITY Although we can observe a common course in European countries 60 relating to procreative rights, the Court plays (or can play), through its jurisprudence, an important role as a possible “norms entrepreneur”. We will show in this part how the interpretation of procreative rights in their interconnection to human dignity may change this viewpoint if some issues are assessed from the perspective of a perception of over-all human dignity. Three issues will be used to analyse the approach of the Court to the concept of human dignity with regard to procreative rights – surrogacy, medical assisted procreation and the status of embryos. 61 Surrogacy as a special artificial technique to procreate is a well-known technique and used worldwide. Different States 62 are famous for legalizing and even promoting these techniques to overcome couples’ infertility. Different issues relating to human rights and ethics are at stake in this matter – such as the question of free of charge rental of the surrogate mother’s womb. The European Court of Human Rights had several possibilities to discuss the issue of surrogacy. 63 Generally the Court has left the question of whether or not to legalize surrogacy arrangements on the national margin of appreciation of States. 64 However, its case-law gives us to understand that surrogacy will soon or later be accepted as an official artificial procreative technique throughout Europe. However, the Court had no direct opportunity to assert surrogacy as something violating human rights per se . Surrogacy as a specific means of reproduction can be absorbed by artificial reproductive technique (ART) with direct implication of a third person – a surrogate mother. 65 A different set of (so-called) human rights can be at stake before, during and after a (successful) ART: beginning with the prohibition of discrimination in the access to ART, the rights of private life (and the prohibition of inhuman and degrading treatment) of the surrogate mother, to the rights of children to their 60 The use of “European consensus” would be a little inappropriate. 61 Some points of analysis have already been presented with regard to two of them – surrogacy and medically assisted procreation. See BURES, Pavel. What is not Right in Human Rights Protection? A few reflections on some European Court of Human Rights judgements.Czech Yearbook of Public and Private International Law. 2014. 62 Among States most frequented by foreign infertile couples are the USA, India and Russia. All of them having special national legislation regulating surrogacy. 63 The joint cases Mennesson and Others v. France and Labassee v. France (no. 65192/11) and (no. 65941/11), 26 June 2014, case D. and others v. Belgium, (no. 29176/13 ) 8 July 2014, case Paradiso and Campanelli v. Italy, (no. 25358/12), 27 January 2015, (this case is now pending under the consideration of the Grand Chamber). 64 „The Court notes the Government’s submission that, in the area in question, the Contracting States enjoyed a substantial margin of appreciation in deciding what was “necessary in a democratic society”. See the case Mennesson and Others v. France (no. 65192/11), 26 June 2014, para. 75. 65 We are not taking into consideration the position of third persons – donors of gametes, or in-vitro clinic, whose rights are to be protected as well.

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