The term surrogacy is used in cases when a surrogate mother carries a child with the intention of permanently handing it to the intended parents upon birth.
Countries regulate surrogacy in three ways. They can either prohibit, allow or not regulate it. Because surrogacy is often prohibited or harder to access, international surrogacy agreements began to emerge, where intended parents travel across the border to get a child.
Due to the large differences in the regulation of surrogacy among countries, legal problems arise when the countries of origin of intended parents do not recognize already established family ties between children and their intended parents. The consequence of non-recognition is often unregulated parentage of the child, which can also affect the determination of the child's nationality. By doing so, countries violate the fundamental rights of all participants, such as the right to the identity of the child, the right to private and family life of the intended parents and the child and interfere with the child's best interest.
Countries are facing these problems in different ways. Due to the lack of harmonization of surrogacy at the international level, national law is applied. The European Court of Human Rights plays an important role at supranational level, which, through binding case law, has introduced the rights of participants in surrogacy agreements. Above all, it has put the best interest of the child at the forefront. Its judgments also indirectly affect the legislation of countries in the field of surrogacy.
Although in recent years there has been visible progress in some countries in this area of family law, a solution should be adopted to regulate surrogacy at a general level, and not only on a case-by-case basis.
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