What makes a Parent? Challenging the Importance of a Genetic Link for Legal Parenthood in International Surrogacy Arrangements

Abstract

Abstract This article advocates for consistent application of the best interests of children in recognition of legal parenthood of children born out of international surrogacy arrangements (ISAs) and opposes its differential application to surrogate children who do not have a genetic link to their intending parents (IPs). Owing to the lack of European consensus and specialized legal instruments regulating recognition of legal parenthood in ISAs, the European Court of Human Rights (ECtHR/the Court) via interpretation of Article 8 obligates prohibitionist home states of IPs to recognize legal parenthood coming out of such international arrangements only in instances where there is genetic link with one or both IPs. This leaves surrogate children with no genetic link to their IPs with no benefits stemming out of recognition of legal parentage often leaving them parentless and stateless. This work challenges the necessity for such limitations through analysis of two ECtHR cases, the Mennesson v. France and the Paradiso and Campanelli v. Italy, where differential consideration of the best interests of children was based on presence or lack of genetic link respectively. It concludes that non-recognition of parenthood is a disproportionate measure to protect legitimate aims of prohibitionist home states and advocates for expansion of their implied positive obligations to protect the best interests of surrogate children with no genetic link to their IPs.