CYIL 2015

250

PAVEL BUREŠ

CYIL 6 ȍ2015Ȏ

private and family life. It is interesting to note that the Court, leaving aside the sole

question of the legality of surrogacy treatment, decided there is some violation of

the Convention. Regarding to recent cases, surrogacy was not permitted in both

respondent States (France and Italy) and (future) applicants have infringed national

law; however, the Court found there can be a violation of private (French cases) and

family life (Italian case). One would argue that we have to protect human rights even

though the situation has been produced by a breach of law and children procreated

by ART cannot suffer from so-called transgression (wrongdoing) of their parents – as

“all human beings are born free and equal in dignity and rights”.

The problematic

question is about some consistency of the legal system. If the French or Italian

societies, in their wide margin of appreciation, have decided not to allow surrogacy

as a procreative technique, they have asserted as a consequence the non-recognition

of the foreign birth certificate which had implications in the inheritance rights of the

child. The logic is very simple: the State cannot recognize a situation as lawful in case

its national law prohibits it. Moreover, even consequences of this unlawful situation in

the view of French law, cannot be put on the same level as consequences of a lawful

situation. This consistency of French law has been broken by the Court’s decisions in

the cases Mennesson and Labassee.

From the point of view of the concept of human dignity, surrogacy is even more

complicated. In the individualistic perception of human dignity, there might not

be any specific implications – perhaps only in that situation where the surrogate

mother is “forced” to surrogacy by her difficult financial situation. Seeing it from the

perspective of over-all human dignity, one can ask what the reasons or justifications

are for a surrogate mother to undergo surrogacy. Is there any other reason than a

financial one?

From the psychological point of view (forming without any doubt

an element of human dignity), it is very difficult to understand that a surrogate

mother is bearing the future human being with only the purpose to give it up later

after delivery. What is forcing the surrogate mother (with the consent of society) to

renounce an internal element of her being (human dignity) to become a mother in a

proper sense. One can easily hesitate on the consideration that this force is moved by

a charitable feeling of helping infertile couples.

Seeing things from the perspective of infertile couples, it is clear they are pushed

by their desire to use ART in order to procreate

and have a child. Their desire is

We can find a parallel to these cases in the Marxck case (Marckx v. Belgium, no. 6833/74, 13 June

1979) with respect to inherent rights of children born out of wedlock.

In the case Paradiso and Campaneli v. Italy

(no. 25358/12), 27 January 2015, applicants have paid

more than 50 000 Euros for the surrogacy.

In this regard, we understand the term “infertile couples” as a male and female couple, and not a

homosexual couple, which cannot naturally procreate at all.

The term “procreate” is somehow ambiguous in the situation of surrogacy, especially in a homologous

one.