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REPRODUCTIVE RIGHTS AND HUMAN DIGNITY
Although we can observe a common course in European countries
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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.
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Surrogacy as a special artificial technique to procreate is a well-known technique
and used worldwide. Different States
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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.
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Generally the Court has left
the question of whether or not to legalize surrogacy arrangements on the national
margin of appreciation of States.
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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.
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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
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The use of “European consensus” would be a little inappropriate.
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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.
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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).
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„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.
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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.