![]() The ECHR’s decisions in these cases ignored the right of children, as set out in the UN Convention on the Rights of the Child, to know and grow up with their biological parents. France, ECHR judges ruled that same-sex couples should have a right to use surrogate mothers to construct their own version of family. Italy, the court condemned Italy for removing from the custody of an infertile couple a child whom they had purchased from a Russian fertility clinic for €45,000. France, the court compelled France to set aside its own ordre public, which defines a child’s mother as the woman who gave birth to him or her. ![]() In recent years, the ECHR has made some significant-and troubling-rulings relating to surrogacy. Cases touching on these issues have been heard in domestic courts, as well as in the European Court of Human Rights (ECHR). When a woman, the “birth mother,” agrees to carry a child on behalf of a couple, questions regarding parentage, custody, and access rights are not easily answered, especially when there is a breakdown in the surrogacy agreement. Surrogacy agreements have already caused a great deal of head scratching in courts across Europe. But this attitude glosses over some substantial complications that are not only challenging for law and policymakers, but also devastating for the parties involved in surrogacy arrangements. If the woman carrying the child consents and understands that she must hand over the child to the intended parents after birth, then what’s the problem? Or so the thinking goes. Surrogacy is sometimes presented as a “compassionate” option for couples unable to conceive and have a child naturally. So why describe the PACE committee’s decision as a “victory” for human rights? Shouldn’t those who are unable to have children have the option of using a surrogate? While surrogacy arrangements can take a variety of forms-if in-vitro fertilization is used, the “birth mother” and the “genetic mother” can be different people, and it’s even possible for both biological parents to be anonymous sperm and egg donors-at its essence, surrogacy is an agreement whereby the birth mother agrees to carry a child for a couple who are unable to have children. The Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe (PACE) rejected a report recommending the legalization of surrogacy in all forty-seven Member States. On Tuesday, March 15, a decision was made in Paris that can only be described as a victory for human rights.
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