EU and European Court of Human Rights in the field of Family Law

• Author: Mirela Fana
• Pages: 30-36

30

Vol. 6 No.1

May, 2020

Balkan Journal of Interdisciplinary Research

IIPCCL Publishing, Graz-Austria

ISSN 2410-759X

Acces online at www.iipccl.org

EU and European Court of Human Rights in the f‌i eld of Family Law

Mirela Fana

Abstract

In the Albanian jurisdiction, the current approach to the concept of new forms of family

remains taboo, not only because of the lack of a substantial and detailed treatment in the

provisions of family law itself, but also because of the lack of development of case law and

doctrinal debate. Meanwhile, other jurisdictions have developed this concept, responding to

modern dynamics and developments in relation to this legal institute, in such a way as to

include the regulation of legal issues with respect to new forms of family, the birth of children

outside the traditional family, assisted reproduction birth methods or by surrogacy.

This paper focuses precisely on a comparative analysis of the complex issues relating to new

forms of family, transgender rights, non-discrimination on the basis of "sexual orientation",

issues related to the recognition and enforcement of a surrogacy agreement in di erent

jurisdictions in European countries.

Most importantly, this paper also addresses the supranational jurisprudence of the European

Court of Human Rights on these issues, analyzed under the perspective of Article 8 of the

European Convention on Human Rights, on the protection of the right to private and family

life.

1. Respect for family and private life in relationships between non-heterosexual

persons

Over two decades, conf‌l icts over the obligation to re-identify the gender and sex of

transgender individuals sent to the Strasbourg Court have resulted in a refusal by

the la er to impose an obligation to recognize new sexual identities, against Member

States.1 In the case of Rees v. The United Kingdom, Cossey v. The United Kingdom

and She eld and Horsham v. The United Kingdom, the Strasbourg Court has been

restrained on the basis of two basic considerations: the absence of a similar legal basis

between Member States and the wide margin of the assessment le to the la er.2

In Goodwin v. The United Kingdom and I. v. The United Kingdom, both cases of

2002,3 the Court reversed its assessment in the wake of the growing consensus and

response to substantive identity issues of transgendered operatives resulting from

non-compliance of "social appearance" and "legal status". The court initially observed

that the conf‌l ict between social reality and law could put a transgender individual

in an abnormal position, in which he or she may have feelings of vulnerability,

humiliation, and anxiety that constitute "serious interference" with that individual's

private life.4 The court also noted that the National Health Service in the UK, as a

respondent State party in these ma ers, funded the gender change of those concerned.

1 See case Van Oosterëijck v. Belgium, 40 Eur. Ct. H.R. (ser. A) p. 33, 39, 41 (1980).

2 See case Rees v. the United Kingdom, 106 Eur. Ct. H.R. (ser. A) p. 37, 44 (1986); See also case Cossey v.

the United Kingdom, 184 Eur. Ct. H.R. (ser. A) p. 40 (1990).

3 See case Christine Goodwin v. the United Kingdom, 2002-VI Eur. Ct. H.R. p. 77; Case I. v. the United

Kingdom, Eur. Ct. H.R. p. 57 (2002).

4 Ibid.