The invisible legal situation of women for the ECHR to cross border subrogated in the first advisory opinion of protocol No 16

Abstract

The ECHR has opened the consultative procedure enunciated in Protocol 16 to the ECHR with the issuance of an Advisory Opinion requested by the French Cour de Cassation. The ECHR had to face a series of questions on the rights of contracting women of a surrogacy agreement concluded abroad with regard to filiation. To resolve these issues, it was expected that the ECHR applied the gender perspective to its jurisdictional work, to analyze the consequences of the regulations and its own jurisprudence in the light of the anti-discrimination law, including analyzing the impact of these practices on pregnant mothers. However, the ECHR opts for the way of non-contestation and reiteration of precedent doctrine: the obligation to register minors if there is a genetic load of the contracting man and to find a way to recognize the child’s coexistence with the contracting partner, ignoring the object of the questions asked by the French court.