Olivia Lopes Pegna

Mater (Non) Semper Certa Est! The Impasse of the European Court of Human Rights on the Biological Truth in D. vs. France Case

  • Abstract

Informations and abstract

Keywords: European Court of Human Rights; surrogacy; biological parent; intended parent; discrimination; best interests of the child.

In D. vs. France the European Court of Human Rights ruled for the first time on a case concerning the recognition of the legal relationship between a child born through a surrogacy agreement abroad and the intended mother who was also the donor of the eggs. Notwithstanding the biological link between the intended mother and the child, the Court did not reach a conclusion similar to the one previously applied with regard to the intended biological father (in Mennesson vs. France and Labasse vs. France), and ascertained that France had not overstepped its margin of appreciation in refusing to record the Ukrainian birth certificate, provided that it was possible for the mother to obtain recognition of the legal relationship with other means: namely, step-child adoption. The paper focuses on the main consequences of this decision, in particular on the possible discriminatory effects between intended (and biological) parents.

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