Advanced search
1 file | 333.47 KB

Extraterritorial laws for cross-border reproductive care: the issue of legal diversity

Wannes Van Hoof (UGent) and Guido Pennings (UGent)
(2012) EUROPEAN JOURNAL OF HEALTH LAW. 19(2). p.187-200
Author
Organization
Abstract
Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States’ legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the EU’s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.
Keywords
reproductive tourism, moral justification, margin of appreciation, cross-border reproductive care (CBRC), extraterritoriality, medically-assisted reproduction, proportionality, legal pluralism

Downloads

  • Extraterritorial Laws for Cross-Border Reproductive Care- The issue of legal diversity EJHL final.pdf
    • full text
    • |
    • open access
    • |
    • PDF
    • |
    • 333.47 KB

Citation

Please use this url to cite or link to this publication:

Chicago
Van Hoof, Wannes, and Guido Pennings. 2012. “Extraterritorial Laws for Cross-border Reproductive Care: The Issue of Legal Diversity.” European Journal of Health Law 19 (2): 187–200.
APA
Van Hoof, W., & Pennings, G. (2012). Extraterritorial laws for cross-border reproductive care: the issue of legal diversity. EUROPEAN JOURNAL OF HEALTH LAW, 19(2), 187–200.
Vancouver
1.
Van Hoof W, Pennings G. Extraterritorial laws for cross-border reproductive care: the issue of legal diversity. EUROPEAN JOURNAL OF HEALTH LAW. 2012;19(2):187–200.
MLA
Van Hoof, Wannes, and Guido Pennings. “Extraterritorial Laws for Cross-border Reproductive Care: The Issue of Legal Diversity.” EUROPEAN JOURNAL OF HEALTH LAW 19.2 (2012): 187–200. Print.
@article{2121765,
  abstract     = {Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States{\textquoteright} legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the EU{\textquoteright}s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.},
  author       = {Van Hoof, Wannes and Pennings, Guido},
  issn         = {0929-0273},
  journal      = {EUROPEAN JOURNAL OF HEALTH LAW},
  keyword      = {reproductive tourism,moral justification,margin of appreciation,cross-border reproductive care (CBRC),extraterritoriality,medically-assisted reproduction,proportionality,legal pluralism},
  language     = {eng},
  number       = {2},
  pages        = {187--200},
  title        = {Extraterritorial laws for cross-border reproductive care: the issue of legal diversity},
  url          = {http://dx.doi.org/10.1163/157180912X628226},
  volume       = {19},
  year         = {2012},
}

Altmetric
View in Altmetric