Gestational surrogacy and the obligations emanated for the States part in the European Convention on Human Rights: Implications on the Spanish legal order of activism and judicial self-restraint of the European Court of Human Rights at this regards

Authors

  • Daniel García San José

DOI:

https://doi.org/10.18042/cepc/redc.113.04

Keywords:

Gestational surrogacy, fundamental rights and new techniques of assisted human reproduction, family life de facto, teleological Interpretation and effective implementation of the European Convention on Human Rights.

Abstract

In this paper is analyzed the ratio decidendi developed by the European Court of Human Rights, according to a dual approach of judicial activism and judicial self-restraint, in recent cases concerning gestational surrogacy (Labassee, Menesson, Foulon, Bouvet, Paradiso and Campanelli), to size the scope of the international obligations assumed by the States which are parties to the European Convention on Human Rights and they prohibit gestational surrogacy in their territories and abroad. This analysis allows us to conclude that new models of family and subsidiaries relationships generated by international surrogacy contracts are guaranteed in the rights to private and family life under art. 8 of the European Convention on Human Rights provided a biological link exists among the people concerned (father of intention and children so conceived).

Issue

Section

STUDIES