CYIL 2014

253

WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION?

the present case the French legislation is clear and by norms of private and criminal

law is prohibiting surrogacy treatment. The applicants, driven by their desire to

have a child, did not respect this legislation and had recourse to surrogacy in the

USA. Although we can absolutely respect and understand this internal desire of the

couple, this one cannot be, according to French legislation, addressed as a right to

be protected by the Convention. The same goes for the private life of children born

in the surrogacy treatment. Their parents, while not respecting French legislation,

cannot not bear any legal or social consequences. We are not proposing here the logic

of children paying for faults of their parents.

We argue that, if the Court asks States

for consistency in their national legal order, it should respect it itself.

The message of the French legislation (the will of the legislature) is clear: for ethical

and other reasons there is a prohibition of surrogacy treatment and all following related

aspects (e.g. non-possibility of filiation, even though there is a biological filiation). By

its present judgment the Court is forcing the French legislature to change its view by

this detour in argumentation and to recognize as legal a situation which should not

have even occurred. In our opinion, this case cannot be qualified at all as evolutive

interpretation, and in similar cases in the future the Court should abandon this case law

to support its decisions.

The Court has, through this decision, shown the ideological

aspects of its reasoning, while it has not borne in mind the overall conception of

human rights protection and the proper development of society but has selected one

isolated issue (private life of child – nationality, successional rights) to bias the will

of the French legislature.

Conclusion

Through these three cases related to the family and private life (sometimes in

conjunction with discrimination) we wanted to show that the European Court of

Human Rights is not accepting the overall conception of human rights protection

leading to the proper development of society, but it is promoting individual desires

as rights to the detriment of society. The “political” aim and task of the Court is not

to make applicants happy while finding their living situation unhappy or one of

suffering. The task of the Court is to protect and so promote human rights through

the essential aspect of human dignity. The overall conception of human rights

protection reflects both the human dignity of individuals, which leads to the right

development of society, and vice versa.

As was presented in the Marckx case.

Situation which will not happen, as the Court has immediately ranked this decision in a Factsheet

on reproductive rights, under a label Surrogacy. See

Reproductive_ENG.pdf.