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

AuthorMirela Fana
Vol. 6 No.1
May, 2020
Balkan Journal of Interdisciplinary Research
IIPCCL Publishing, Graz-Austria
ISSN 2410-759X
Acces online at
EU and European Court of Human Rights in the f‌i eld of Family Law
Mirela Fana
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
1. Respect for family and private life in relationships between non-heterosexual
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.

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