Valdís Fjölnisdóttir and Others v Iceland: cross-border surrogacy and foster care. What about the best interests of the child?

By Dr Marianna Iliadou, Teaching Fellow in Medical Law and Ethics at Durham University, UK.

On 18 May 2021, the Third Section of the European Court of Human Rights (ECtHR or the Court) delivered a judgment on the contested issue of non-recognition of the parent-child relationship for a child born through cross-border surrogacy. Surrogacy is the practice where a woman (surrogate) carries and gives birth to a child for someone else.

Valdís Fjölnisdóttir and Others v Iceland gave the Court the opportunity to rule on the refusal of parentage recognition where no intended parent is genetically related to the child, but the child is under their foster care. The Court found no violation of Article 8 ECHR (private and family life), because based on the foster care arrangements there were no actual, practical hindrances in the enjoyment of family life, while given the same (in principle) nature of the complaint under private life it did not see any reason to depart from the above conclusion. Lastly, the Court did not engage with the claim under Article 14 (non-discrimination) and rejected it as manifestly ill-founded.

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