Europe's Moral Margin: Parental Aspirations and the European Court of Human Rights
63 Pages Posted: 27 Sep 2018
Date Written: May 2018
This Article challenges the way in which the European Court of Human Rights deploys its doctrine of the “margin of appreciation” in order to defer to sensitive moral and ethical decisions taken by domestic institutions. I call this deference the “moral margin,” which I critique on two grounds. The first is an arbitrariness critique: in practice, whereas the Court once deemed a range of issues to have moral salience, it has recently narrowed its definition of “sensitive moral and ethical” issues to cover almost exclusively cases that implicate reproductive choices and family formation. This deferential language allows the Court to conceal its resistance to intervene into national disputes over certain kinds of issues. Second, I argue that when the Court chooses to defer to Member States, it should instead employ approaches—namely consensus analysis and proceduralization—that foster dialogue among Europe’s rights-protecting institutions. Using the recent gestational surrogacy judgments as a case study on the human rights implications of parental aspirations, I demonstrate how the ECtHR can engage with domestic institutions to allocate rights-protecting responsibility and encourage Europe-wide change.
Keywords: European Court of Human Rights, surrogacy, margin of appreciation, consensus analysis, human rights, family law
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