CYIL vol. 11 (2020)

CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS Monika Forejtová – Pavla Buriánová – Vladislav Vnenk Abstract: The article deals with current legal issues related to new methods of childbirth through surrogate mothers. The Constitutional Court of the Czech Republic and the ECtHR have addressed the issue of surrogacy several times in their case law, because new methods of assisted reproduction concern individual within civil law but often also within criminal law. Resumé : Článek pojednává o aktuálních právních otázkách, souvisejících s novými meto- dami porodu prostřednictvím náhradních matek. Ústavní soud ČR a ESLP se ve své judi- katuře několikrát zabývaly otázkou náhradního mateřství, protože nové metody asistované reprodukce se týkají jednotlivce v občanském právu, ale často i v trestním právu. Key words : motherhood, surrogacy, ECHR, case law About the Authors: Doc. JUDr. Monika Forejtová, Ph.D . Faculty of Law of the University of West Bohemia in Plzeň. Head of Department of Constitutional Law and European Law, associate professor, publishing in EU law issues, private attorney. JUDr. Pavla Buriánová is an assistant judge of the Regional Court in Ústí nad Labem and at the same time a doctoral student at the Faculty of Law, University of West Bohemia in Pilsen, and also a senior lecturer at the Department of Constitutional and European Law. JUDr. Vladislav Vnenk is an attorney and at the same time a doctoral student at the Faculty of Law, University of West Bohemia in Pilsen, and also a senior lecturer at the Department of Constitutional and European Law. 1. Introduction to issues of motherhood and surrogacy New methods in medical science and medicine move development of the human society ahead by leaps and bounds, when new solutions and treatment possibilities are discovered, and legislation has no choice but to adapt to this progress and to respond to it. Both legislation and case law of national as well as international courts then respond to jump processes in the society which are reflected in the all-society perception and arrangement of relations between private individuals in relation to each other on the one hand, and between individuals and state power on the other hand. In a spirit of needs of a modern approach to social factors, the European Court of Human Rights (hereinafter referred to as “ECtHR”) provided its comments on the situation in the Czech Republic as well, in its judgement in the case Dubská and Krejzová v. the Czech Republic, of 11 December 2014, in which the Grand Chamber invited the Czech Republic to adopt, with regard to the development of medicine, appropriate provisions of legal regulations reflecting this development. 1 Although 1 Judgement of the Grand Chamber in the case Dubská and Krejzová v. the Czech Republic (Application no. 28859/11 and 28473/12). Although the matter concerned a decision relating to home births, the importance of the recommendation towards the Czech Republic cannot be neglected in a general direction regarding the progress in medical science either.

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