Browsing by Author "Rintamo, Sara"

Surrogacy is a debated way of having children. It divides people, and jurisdictions in those who endorse it and those who do not accept it. Just within Europe there are multiple approaches adopted on its regulation, alternating between permissive take on it to total bans and criminal sanctions. Globalisation, advancement of medicine and digitalisation have contributed to enabling the providers of surrogacy services in countries where it is legal with the people in the countries where it is not permitted at all or where they are not eligible to take part in such an agreement, who want to have a child through a surrogacy arrangement. This has created a completely unregulated global market of service providers and cross-border reproductive patients circumventing domestic legislation. The diversity of regulatory approaches in national legislation in Europe combined with the total absence of international regulation create a robust foundation to exploitation and human rights infringements in surrogacy cases. Most European states have ratified the European Convention on Human Rights, and have to accommodate its requirements in their legislation and practices concerning surrogacy. Consequently, this thesis aspires to map out the different legislative ways that European countries have adopted in regulating surrogacy, and evaluate their compatibility with the European Convention on Human Rights as well as their felicity in ensuring the realisation of the human rights of the surrogate mothers. In addition to that, the thesis discusses the historical development of medically assisted reproduction and surrogacy. Cross-border surrogacy has led to litigation on both domestic courts and in the European Court of Human Rights. The case law from both of this are shaping the developing understanding of the scope of national legislation regarding surrogacy. Cross-border reproductive tourism has put the scope of national law in test, invoking questions about whether national regulation on the subject will prove to be redundant when the circumvention of national is increasingly affordable and accessible. Judging these cases, the courts have to take into account not only domestic legislation, but also international conventions the states have contracted and the principles, such as the priority of the best interest of the child, stemming from them. This thesis has a detailed review of the cross-border surrogacy cases of the European Court of Human Rights, and analyses case law’s impact on the current and the future development of national and international regulation, their effect on the predictability and legal stability of domestic law. Lastly, the thesis maps out the current endeavours on international level to draft international regulation on surrogacy. There are some similarities between the development of the international adoption regulation to ongoing developments of surrogacy in practice and in regulation. The thesis provides a brief review of present situation of international regulation, and aspires on its part to contribute data to analysing the best regulatory options for both national and international regulation on surrogacy.