CYIL 2014

WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION? the present case the French legislation is clear and by norms of private and criminal law is prohibiting surrogacy treatment. The applicants, driven by their desire to have a child, did not respect this legislation and had recourse to surrogacy in the USA. Although we can absolutely respect and understand this internal desire of the couple, this one cannot be, according to French legislation, addressed as a right to be protected by the Convention. The same goes for the private life of children born in the surrogacy treatment. Their parents, while not respecting French legislation, cannot not bear any legal or social consequences. We are not proposing here the logic of children paying for faults of their parents. 42 We argue that, if the Court asks States for consistency in their national legal order, it should respect it itself. The message of the French legislation (the will of the legislature) is clear: for ethical and other reasons there is a prohibition of surrogacy treatment and all following related aspects (e.g. non-possibility of filiation, even though there is a biological filiation). By its present judgment the Court is forcing the French legislature to change its view by this detour in argumentation and to recognize as legal a situation which should not have even occurred. In our opinion, this case cannot be qualified at all as evolutive interpretation, and in similar cases in the future the Court should abandon this case law to support its decisions. 43 The Court has, through this decision, shown the ideological aspects of its reasoning, while it has not borne in mind the overall conception of human rights protection and the proper development of society but has selected one isolated issue (private life of child – nationality, successional rights) to bias the will of the French legislature. Conclusion Through these three cases related to the family and private life (sometimes in conjunction with discrimination) we wanted to show that the European Court of Human Rights is not accepting the overall conception of human rights protection leading to the proper development of society, but it is promoting individual desires as rights to the detriment of society. The “political” aim and task of the Court is not to make applicants happy while finding their living situation unhappy or one of suffering. The task of the Court is to protect and so promote human rights through the essential aspect of human dignity. The overall conception of human rights protection reflects both the human dignity of individuals, which leads to the right development of society, and vice versa.

42 As was presented in the Marckx case. 43 Situation which will not happen, as the Court has immediately ranked this decision in a Factsheet on reproductive rights, under a label Surrogacy. See http://www.echr.coe.int/Documents/FS_ Reproductive_ENG.pdf.

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