The European Court of Human Rights (ECtHR) balances along two axes: individual right vs. government interest and national vs. supranational judgment. The Court calibrates the level of deference it affords States through the margin of appreciation, a doctrine designed to vary how strictly the supranational court will scrutinize national decisions. This Article challenges the way in which the Court deploys margin of appreciation in order to defer to "sensitive moral and ethical" decisions taken by domestic institutions. I call this deference the "moral margin." Although the European Convention on Human Rights explicitly authorizes the Court to take "protection of morals" into account when weighing rights claims, I argue that the Court has used this authorization in a manner that fails to honor its role within Europe. I critique the "moral margin" on two grounds. First, in practice, the Court has narrowed its definition of "sensitive moral and ethical" issues to cover almost exclusively cases that implicate reproductive choices and family formation. Second, I argue that when the Court chooses to defer to Member States, it should instead employ approaches – namely consensus analysis and proceduralization – that foster dialogue among Europe's rights-protecting institutions. Using the recent gestational surrogacy judgments as a case study, I demonstrate how the ECtHR can engage with domes- tic institutions to allocate rights-protecting responsibility and encourage Europe-wide change.
Europe's Moral Margin: Parental Aspirations and the European Court of Human Rights,
Colum. J. Transnat'l L.
Available at: https://scholarship.law.ua.edu/fac_articles/732