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Does Article 8 Protect The Rights Of All Parents Or Just Some?

Andy McHugh

20th January 2019

The right to respect for a private and family life ought, in principle, to be applied in the same way for all parents. However, as is often the case in law, there are times where this does not happen. In the following examples, we will see how this can be in the interests of justice but also where it could potentially be in breach of human rights.

Example 1:
A couple who are not able to conceive a child naturally decide that they will enlist the help of a surrogate mother. This is someone who will not be biologically related to the child, in terms of their DNA, but will just carry the child in her womb during pregnancy. In normal circumstances, the surrogate mother would transfer her status as a mother (as she is the one who gives birth) to the biological parents, once the child is born. The state allows this and the couple enjoy full parental rights without any interference from the state.

Example 2:
A woman who is not able to conceive a child naturally decides that she will adopt a child. The state allows this and the single mother enjoys full parental rights without any interference from the state.

Example 3:
A woman who is not able to conceive a child naturally decides that she will use a surrogate mother to carry her own biological child through pregnancy. Once the child is born, the state refuses to allow her full parental rights, preferring instead for those rights to remain with the surrogate, who is not biologically related to the child.

Clearly there is an issue here, in that parents who are in relationships have their rights protected, whereas single parents do not enjoy such protection. This is a breach of Article 8 and also Article 14 - the right to be free from discrimination.

As a result of cases such as the one above, Parliament passed the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, preventing the discrimination that occurs in this way in the future.

When, if at all, do you think the rights of parents to have children should be restricted? Is this something that should be decided by a court or by Parliament?

In Evans v UK (2007), a woman deciding to use her frozen embryos to have a child, after she had split up from her partner, who had asked for those embryos to be destroyed. The case rested upon whether or not the reproductive rights of the father ended once the egg had been fertilised. On Appeal, the court in Strasbourg decided against Ms Evans, arguing that the father’s rights were still to be protected in cases such as these. In addition, the court argued that the decision did not breach Ms Evans’ right to have a family, as "there is no rule of domestic law or practice to stop her from adopting a child or even giving birth to a child originally created in vitro from donated gametes”. The court was only restricting the use of the embryos she had jointly created with her partner in this instance.

This was in contrast o the case of Samantha Jefferies, who in 2016 won the right to use embryos that she’d jointly created with her recently deceased husband.

Exam Focus:

Be able to demonstrate understanding of the possible interpretations of Article 8 from the standpoints of both the mother and the father in Evans v UK.

Andy McHugh

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