Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity

in European Journal of Health Law
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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.

Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity

in European Journal of Health Law




W. Van Hoof and G. Pennings“Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment?”Reproductive Biomedicine Online 23 (2011) 546-554.


G. Pennings“International evolution of legislation and guidelines in medically assisted reproduction”Reproductive Biomedicine Online 18 supplement 2 (2009) 15-18.


G. Pennings“Cross-border reproductive care in Belgium”Human Reproduction 24(12) (2009) 3108-3118.


Z.B. Gürtin“Banning reproductive travel: Turkey’s ART legislation and third-party assisted reproduction”Reproductive Biomedicine Online 23 (2011) 555-564.


A. Chehtman“The Extraterritorial Scope of the Right to Punish”Law and Philosophy 29 (2010) 127-157.


J.W. Dellapenna“Abortion across state lines”Brigham Young University Law Review (2008) 1651-1702.


A. Fraley“Child Sex Tourism Legislation under the Protect Act: Does It Really Protect?”St. Johns Law Review 79 (2005) 445-484.


B. Rind P. Tromovitch and R. Bauserman“A meta-analytic examination of assumed properties of child sexual abuse using college samples”Psychological Bulletin 124(1) (1998) 22-53.


WHO 2008“Eliminating female genital mutilation: an interagency statement.” Retrieved 26 August 2011 http://www.who.int/reproductivehealth/publications/fgm/9789241596442/en/index.html.


A.E. Galeotti“Relativism, universalism, and applied ethics: the case of female circumcision”Constellations 14 (2007) 91-111.


IFPA. 2011. “Between January 1980 and December 2010 at least 147912 women travelled from the Republic of Ireland for safe abortion services abroad.” Retrieved 26 August 2011 http://www.ifpa.ie/Hot-Topics/Abortion/Statistics.


European Parliament 2009. Report on the proposal for a directive of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare (COM(2008)0414 — C6-0257/2008 – 2008/0142(COD)) Committee on the Environment Public Health and Food Safety.


N. Priaulx“Testing the Margin of Appreciation: Therapeutic Abortion, Reproductive ‘Rights’ and the Intriguing Case of Tysiąc v. Poland”European Journal of Health Law 15 (2008) 361-379.


R. Storrow“The pluralism problem in cross-border reproductive care”Human Reproduction 25(12) (2010) 2939-2943.


G. Pennings“Evaluating the welfare of the child in same-sex families”Human Reproduction 26(7) (2011) 1609-1615.


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