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32 Swiss. Rev. Int'l & Eur. L. 397 (2022)
Surrogacy and Same-Sex Parenthood before the European Court of Human Rights: Reflections in Light of Cases against Switzerland

handle is hein.journals/sriel32 and id is 407 raw text is: Surrogacy and Same-Sex Parenthood before the European Court of Human Rights: Reflections in Light of Cases against Switzerland Elena Brodeala* & Marie-Hdlene Peter-Spiess* This article analyses critically recent and potential developments in the surrogacy case law of the European Court of Human Rights (ECtHR) by looking particularly at the question of male same-sex parenthood in light of two pending cases against Switzerland. Starting from the previous case law of the ECtHR on surro- gacy and the pending Swiss cases, the article reflects on three issues. The first is whether and how the principles developed in previous ECtHR cases as regards different-sex couples would also apply in the case of male same- sex couples, which is the issue at stake in the Swiss cases. Second, the article reflects on the role of genetics, respectively biology, in adjudicating on the two cases at stake. Finally, the possible implications of these cases for Switzerland are also explored. Keywords: Surrogacy - Same-Sex Parenthood - Parentage - European Court of Human Rights - Adoption - Switzerland Table of Contents I. Introduction II. Surrogacy before the European Court of Human Rights III. Swiss same-sex couples using surrogacy seeking redress in Strasbourg IV. Reflections on the development of the ECtHR case law on surrogacy in light of the Swiss pending cases A. Preliminary remarks B. Surrogacy and same-sex parenthood before the ECtHR C. The role of genetics and biology in establishing parentage D. Implications for Switzerland V. Conclusion * PhD (EUI), LL.M. (Yale), Postdoctoral Researcher, University of Zurich, and Adjunct Lecturer at Sciences Po, France. ** PhD Researcher, University of Zurich, and Adjunct Lecturer at Sciences Po, France, admitted to the Swiss bar (non-practising). This work was supported by the University Research Priority Program «Human Reproduction Reloaded» of the University of Zurich. The authors would like to thank Christa Preisig and Viktoriya Gurash for their useful comments on an early draft of this article, as well as Prof Judit Sandor and the participants of the panel «Parenthood, Reproductive Rights and the European Court of Human Rights» that took place at the 2021 Annual Conference of the International Society of Public Law (ICON-S) for their feedback on some of the ideas developed in this paper. Furthermore, the authors would like to thank Prof Reva Siegel from Yale Law School for sharing a collection of useful legal materials on surrogacy that laid the foundation of their research. Any errors are of the authors alone. 32 SRIEL (2022) 397