Towards the recognition of a right to a child under the European human rights framework? A study of surrogacy: emphasis on France

Abstract

Human beings’ dependency on technology has fallen upon us in a blink of an eye. This dependency slowly allows technological progress to act in the most personal aspects of individuals’ lives. Reproductive technology while appearing as godsends for some and abominations for others gradually changes family structures and the traditional vision of parenthood. Among this technology, surrogacy is the one preoccupying all minds. On the one hand, by its very nature, surrogacy is the assisted reproductive technology that complies with the broader panel of family compositions by including gay couples and single men. However, on the other hand, it is also the one producing the most heated debates by pushing both the boundaries of, notably, (bio)ethics and law. Still, because surrogacy has become increasingly accessible and easier to perform, States are increasingly facing individuals’ demands pushing this reproductive technology to its peak. These circumstances brought France, one of the most prohibitionist States in the matter, to a situation in which it found itself stuck into a whirlwind of contradictions: being torn between its own beliefs, the cry of despair from some of its citizens as well as the protection of the rights of others. Such context becoming even more complicate as a consequence of the intervention of European institutions, most notably the European Court of Human Rights. While both national and European institutions tend to diverge when dealing with surrogacy and its correlated phenomena, they have both been required to adjudicate on the hypothetical emergence of a right to a child. Thus, should surrogacy be considered as a rights’ abuser or a rights’ driver?