Traditional family values vs. human development? : assisted reproduction techniques and the ECtHR approach

Abstract

The emergence of new means of procreation through assisted reproductive technology (“ART”) has challenged the culturally shaped conception of the two-parent nuclear family that is biologically capable of producing a child and has confronted European states with the question of how families created through ART should be legally recognized and who should have access to these techniques. After an analysis of the evolution of the concept of ‘family’ in European societies since the drafting of the European Convention on Human Rights (“ECHR” or “the Convention”) and its repercussions in human rights discourse, this thesis examines whether the European Court of Human Rights (“ECtHR” or “the Court”) allows for inclusive conceptualizations of ‘family’ in its interpretation of the Convention in selected cases related to the use of ART. The analysis is done from the perspective of the capability and reproductive justice approaches, which offer a holistic and feminist perspective of the realization of human rights in practice. Empirical evidence suggests that the Court does adopt an inclusive understanding of ‘family’ and recognizes reproductive rights in the context of ART. Nonetheless, by invoking, in most cases, a wide margin of appreciation at the national level, the Court may well limit its role as a guarantor of human rights. States which adopt conservative approaches towards the regulation of ART may thus perpetuate traditional understandings of gender differences and family values at the national level, to the detriment of the rights of individuals who are unable to conceive a genetically related child by means other than ART, thereby severely compromising their individual freedoms and quality of life.