This chapter discusses the right to respect for ones family life and the right to marry as protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is also paid to topics such as adoption, legal parentage, best interests of the child and same-sex marriage. In the final section, a short comparison between the different instruments is made.

This chapter begins with a discussion of the common methodologies, starting assumptions, and key aims that shape philosophical work in this sphere. This part of the chapter aims to lay bare the bones of philosophy of parenthood as this field currently stands, providing a critical tool for investigation of existing theories of parenthood, but also further demonstrating the complex interdependence between moral parenthood and the concepts of parenthood covered in the previous chapters. I then give an overview of the approaches philosophers have taken to defining the grounds of moral parenthood, and the different problem cases motivating these accounts. Whilst all these problem cases deviate from the ‘paradigm’ case – in which biological, social, legal, and moral parenthood neatly coincide – literature on parental obligations tends to focus on situations in which candidate parents are disinclined to take on some form of parenting role. Philosophers focusing on parental rights, on the other hand, have often been concerned with an overabundance of candidate parents and have aimed to provide solutions to potential disputes. These disputes might arise between parties to surrogacy agreements, biological parents and step- or adoptive parents; and, more speculatively, between biological parents and the hypothetical ‘best available parents’.

In the final chapter of the book, I argue that future research in philosophy of parenthood should take either a significantly broader or significantly narrower view of parenthood (or parental rights/obligations). We should not assume that we can use any of these four key concepts of parenthood independently, without taking into account their interrelations with others. We may therefore move forward either by considering problem cases in light of these concepts as an interrelated web (or ‘family’) or by stripping back the questions being asked to investigate more specific concepts. For example, the latter approach to moral parenthood might involve putting aside the widespread presupposition that parental rights and obligations are a concomitant ‘package’ and instead focusing on isolated issues, such as the right not to be separated from one’s biological offspring. The rights and obligations with which philosophers are chiefly concerned should, on this approach, be stripped away from the myth of ‘the parent’ as one straightforward entity with clear and consistent characteristics.

This chapter investigates the common presuppositions we make about legal parenthood – for example, the assumption that biological parents are legal parents by default in most jurisdictions. Looking back at some of the ways in which legal rules of parenthood have shifted in recent history, I show that these rules are often more tightly knit with legal structures surrounding marriage and other kinship structures, than with biological parenthood, particularly for men. I examine the problems faced by unmarried fathers who either do not know they have biological offspring or discover this too late to claim legal parental rights. I also discuss the role of the principle of ‘the best interests of the child’ and the conflicts that arise when laws motivated by the best interests of children are broken for the sake of the best interests of a specific child. I then focus on the regulation of adoption and surrogacy in order to illustrate the fragility of distinctions between these practices, in which the difference between parenthood and a criminal offence sometimes hinges on a couple of pieces of paperwork.

The focus of this chapter is on the right to family life and the best interests of the child in the field of migration, and specifically on the Family Reunification Directive. The question addressed is whether and to what extent the Court of Justice of the EU relies on fundamental rights in giving shape and meaning to the directive. Following a brief overview of the main lines of scholarly analysis and state practice relating to the directive, and an exposition of the international human rights benchmark relating to family life and the best interests of the child, the chapter critically analyses the burgeoning case law of the CJEU on the directive from a fundamental rights perspective, beginning with the influential European Parliament v Council judgment and culminating in the most recent preliminary references. The key finding is that the Court is ambiguous about the role that fundamental rights should play in this contorversial policy area.

This chapter provides an insight into how certain rights of the child – the definition of child, the best interests and the hearing of the child – have been incorporated in the recently revised Brussels II bis Regulation. The focus is on the 'overriding mechanism' in child abduction cases. The article points out major flaws in the current regulation’s scheme as illustrated in relevant CJEU case law. These shortcomings may affect the level of protection of the rights of the child, as well as the fundamental right to respect for family life under the ECHR. The chapter offers a critical view on the current regulatory scheme, particularly in the light of relevant CJEU case law. With a passing reference to the Commission’s 2016 Proposal, it details how the recently revised regulation (Brussels II bis Recast) deals with the weaknesses of the current framework and assesses the appropriateness and effectiveness of the amendments, critically examining whether the revised regulation is likely to overcome the difficulties encountered.

Chapter 5 addresses the regulation of donor conception. This chapter examines how parentage should be allocated in situations where this procedure is used. The aim of the chapter is to identify a means of allocating parentage that is most in keeping with the best interests principle. The child’s right to identity and safeguards required to vindicate this right in cases of donor conception are also considered, as is the issue of access to services for gay and lesbian couples.