PRIVATE AND FAMILY LIFE AND CONTESTED MORALITIES IN FRONT OF THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

In fields of contested moralities, such as in the section between medically assisted reproduction and private
and family life, the margin of appreciation of the European Court of Human Rights is still especially
flexible, thus endangering (instead of protecting) individual human rights. The text will prove this to be the
case via elaboration of two (among the others) cases: the case Paradiso and Campanelli v. Italy (2017) that
involves a reproductive tourism and a lost national recognition of an adopted embryo born by surrogate
woman in a foreign country and the case Orlandi and Others v. Italy (2018) that involves a lost national
recognition to same-sex couples married abroad. The outcome in both cases is different. The author
concludes that the European Court of Human Rights should interpret (as it does in recent cases) on grounds
of rational and strict scrutiny in the European context, because its decisions set a European hierarchy of
values, which cannot vary drastically from State to State. In this way, the Court should remain, for the
Members of the Council of Europe, a guide, and not to allow overuse of the margin of appreciation in the
field of conflicts between fundamental human rights.