Identity Rights and Sensitive Ethical Questions: The European Convention on Human Rights and the Regulation of...

Attitudes to surrogacy vary widely across Europe, leading to great variation in the domestic legal regimes of the Member States of the Council of Europe. Confronted with such diverse approaches, the European Court of Human Rights (ECtHR) faces a difficult task in seeking to apply Convention rights in the surrogacy context, which it has tackled in the recent cases of Mennesson v France and Paradiso and Campanelli v Italy. The primary purpose of this article is to propose an argument as to what the Convention requires of the Member States in the field of surrogacy. It is argued that while tensions exist between the leading cases, they may be reconciled by appreciating the importance of the right to identity, a facet of the right to respect for private life. Properly understood, the case law imposes obligations on the Member States as regards the legal status of surrogate-born children in both cross-border and domestic surrogacy. The secondary purpose of this article is to argue that, in the surrogacy context, the concept of identity should be given a richer interpretation which encompasses the child's relationship with genetic, gestational, and intended parents, and therefore that a narrow margin of appreciation must apply to all State interventions concerning the legal status of surrogate-born children.