Best Interests of the Child and Recognition of Civil Status lawfully acquired abroad following International Surrogacy Arrangements (ISAs)

The recognition of the foreign parent-child relationship is the most controversial issue arising out of International Surrogacy Arrangements (ISAs). The existing legal framework on the matter is highly fragmented at the national level and the number of cross-border arrangements that are entered into in surrogacy-friendly jurisdictions is constantly increasing. The paper examines, first, the recent ECtHR jurisprudence over the interplay between Article 8 of the ECHR (right to family and private life) and cross-border surrogacy arrangements, which is considerably affecting the functioning of national PIL rules on recognition of foreign civil status lawfully established abroad following ISAs. The paper then explores the impact of the principle of the best interests of the child on the matter in the context of the Council of Europe’s Member States. The analysis of the recent national case-law following the Mennesson and Labassee rulings reveals that the principle may be differently declined in the light of the legal and political sensitivity of each domestic legal order.