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Chapter 2 explores the right to make use of medically assisted procreation to conceive a child, upheld by the Strasbourg Court as an expression of private and family life. It discusses limitations based on ‘the rights of others’ (e.g. the other gamete provider in disputes over embryos) and ‘morals’ (e.g. public policy objections to heterologous fertilisation, surrogacy and the posthumous use of cryopreserved gametes/embryos). The chapter argues that the refusal to treat couples with donated gametes imposes a choice between genetic parenthood and the continuance of marriage to an infertile spouse, affecting both prospective and existing family life. It further maintains that reproductive autonomy should extend to posthumous reproduction where the deceased left advance directions and there are no overriding child welfare concerns. The chapter notes the recognition of legal ties between children and genetic parents in foreign surrogacy cases, albeit exclusively through the lens of children’s privacy (identity) rights.
Draghici contends that the advent of assisted reproductive technologies has given rise to new fundamental, albeit not unqualified, rights. They include the right to use medically assisted procreation (e.g. artificial insemination, in vitro fertilisation, potentially gamete donation, posthumous conception or surrogacy) in order to become a parent (typically where natural procreation is hindered by infertility, sexual orientation, relationship status or adverse life events), the recognition of intention-based parenthood in relation to donor-conceived children jointly planned and raised with the genetic parent, and the right to pursue the conception of a healthy child (e.g. through recourse to preimplantation genetic diagnosis and embryo selection to avoid severe illness in future offspring). To substantiate this claim, the book relies on a comprehensive analysis of international case-law on procreative autonomy, contextualised by a discussion of highly divisive bioethical controversies, from the status of embryos to the morality of genetic screening and third-party reproduction.
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