„Macierzyństwo zastępcze” w aktualnym orzecznictwie Europejskiego Trybunału Praw Człowieka

Abstract

Surrogate motherhood, known also as surrogacy, is a kind of civil law contract according to which one party – surrogate mother is obliged to bear a pregnancy and after giving a birth transfer all rights concerning a child to commissioning party. There are two basic types of surrogacy, of which gestational surrogacy has recently become more popular. By concluding gestational surrogacy agreement commissioning party oblige itself to provide an embryo no matter of its source, while surrogate mother is bonded only to bear pregnancy. The second type of surrogacy agreement, often called traditional, encompasses also surrogates obligation to provide an egg, due to this fact, as the egg donor, surrogate mother becomes also a genetic mother. Surrogacy is connected to a variety of serious legal problems among others: deciding whether this kind of contract should be legal or banned and resolving an issue of a legal status of a new born child, by answering the question who is its legal parent. The paper comments a number of recent judgements given by European Court of Human Rights in the field of surrogacy. All the cases concerned question of international surrogacy, so the particular problems that were adjudicated regard the problem of recognising a foreign act of birth (Menneson v. France), giving permission to a child arrival to the intended parents country (D. and others v. Belgium) or factual separation of the child and the intended parents (Paradiso and Campanelli v. Italy). Applicants in the aforementioned cases claimed that states actions regarding surrogacy were opposite to the article 8 of European Convention on Human Rights, especially the right to respect private and family life. European Court of Human Rights has not been settling a dispute in which intended parents refused to take care of the child, what could be a real test to Strasbourg`s view on the commented problem.