The Proportionality Problem in Cross-Border Reproductive Travel
The Globalization of Health Care: Legal and Ethical Issues, I. Glenn Cohen, ed., Oxford University Press, 2013
Posted: 31 May 2014
Date Written: August 13, 2013
Many, perhaps most, of the Europeans who engage in cross-border reproductive travel do so because of laws that bar their access to assisted reproduction in their home countries. This chapter examines whether the doctrine of proportionality found in the jurisprudence of the European Court of Human Rights might play a role in dismantling these laws and in thus curbing the demand for European cross-border reproductive travel. Recent pronouncements of the Court indicate a commitment to protecting traditional family relationships forged by biological connections. As long as member-states' restrictions on reproduction assisting techniques do not place these relationships in peril, the Court grants a wide margin of appreciation to the regulation of assisted reproduction. Despite this conservative tendency in the Court's jurisprudence, this chapter predicts that proportionality review will begin to assume, in the near term, a position of greater importance in the judicial review of restrictive reproductive laws in Europe.
Keywords: cross-border reproductive care, reproductive tourism, law, proportionality, extraterritoriality, comity, European Court of Human Rights, margin of appreciation
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