1 - Parenthood Aspirations and Justiciable Rights

Summary

Chapter 1 argues that parenthood aspirations, including those reliant on novel reproductive techniques, have started to evolve into justiciable rights. It challenges the view that human rights law cannot adequately address bioethical issues and examines commonalities and mutual influences between human rights and bioethical discourse. The chapter first analyses international case law establishing (predominantly negative) obligations in relation to natural procreative capacity. As regards medically assisted procreation, it observes that, perhaps counter-intuitively, most of the claims raised in Strasbourg litigation have been assessed by the European Court of Human Rights as involving active interferences as opposed to lacunae. The chapter provides a catalogue of (alleged) negative and positive obligations as they emerge from the case law; it examines the rationale for the Court’s treatment of a claim through the lens of negative or positive obligations while suggesting that that classification does not have a significant practical impact on the outcome of the case.