Surrogacy, System Shopping, and Article 8 of the European Convention on Human Rights

Contracting States of the European Convention on Human Rights (ECHR) are bound to secure the rights guaranteed by the Convention. Article 8 ECHR, which guarantees the right to respect for private and family life, has been interpreted as importing extensive obligations to recognize parent-child relationships created through overseas surrogacy arrangements. These ECHR obligations (first articulated in 2014) signify an acceleration in the privatization of family law and in the legitimatization of system shopping. While the EU institutions had previously indicated a willingness to accommodate party autonomy and system shopping in its private international law instruments, these accommodations were carefully calibrated, in particular where children were concerned. This article critiques the Article 8 ECHR jurisprudence on international commercial surrogacy and the role of the child's 'best interests'. It questions the desirability of the Strasbourg Court's interventions in a domain where human rights considerations are so conflicted. It is argued that the European Court of Human Rights (ECtHR) has facilitated untrammelled system shopping in a very sensitive field of child law, and has dismantled domestic legislative choices, without providing a convincing alternative analysis.