Cross-Border Surrogacy Before the European Court of Human Rights: Analysis of Valdís Fjölnisdóttir And Others v Iceland

Abstract

Abstract The recent case of Valdís Fjölnisdóttir and Others v Iceland adds to the emerging ECtHR jurisprudence on cross-border surrogacy. It reinforces principles established in previous cases and, in doing so, clarifies the scope of the child’s rights under Article 8 ECHR, and hence clarifies the scope of the obligations placed on Member States in cases of cross-border surrogacy. At the same time, consideration of Valdís Fjölnisdóttir reveals significant omissions in the approach adopted by the ECtHR as regards consideration of the rights of the child. In this way, aspects of Valdís Fjölnisdóttir confuse, rather than clarify, the scope of the child’s Article 8 ECHR rights in cases of cross-border surrogacy. This article examines the Valdís Fjölnisdóttir judgment with a view to identifying emerging principles, as well as contradictions, in the developing body of jurisprudence relating to cross-border surrogacy.