Morally Sensitive Issues and Cross-Border Movement in the EU

Within the European Union there is considerable diversity in morally sensitive issues like legal recognition of same-sex relationships or reproductive matters, such as abortion, assisted human reproduction (AHR) and surrogacy.
Nelleke Koffeman
Human Rights Research Series
book | published | 1st edition
November 2015 | xx + 726 pp.


ISBN 9781780683492

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Within the European Union there is considerable diversity in morally sensitive issues like legal recognition of same-sex relationships or reproductive matters, such as abortion, assisted human reproduction (AHR) and surrogacy. States generally expressly claim recognition of such diversity and it is explicitly respected at European level, even though the (implicit) influence of European law is increasingly visible in these areas.

Cross-border movement within the EU adds a new dimension to this complex picture. It implies that States are increasingly confronted by (the consequences of) one another’s regimes. For example, same-sex couples residing in one EU Member State claim recognition of their marriage concluded in another Member State, or women from Member States with restrictive abortion regimes resort to States with more liberal regimes. This research explores this cross-border dimension, identifies a number of pressing questions and provides insight into the interests that are at stake in such situations.

This volume firstly investigates what – if any – standard-setting is in place in three national jurisdictions (Ireland, Germany and the Netherlands) as well as in the relevant European jurisdictions (EU law and the ECHR) in respect of reproductive matters and legal recognition of same-sex relationships, and how this has developed over time. This analysis inter alia provides insight into what considerations and interests play or have played a role in legislative debates and case-law, in what respects the regimes studied differ, and how European law has influenced national standard-setting. It furthermore provides the necessary basis for the subsequent analysis of how the relevant jurisdictions respond to cross-border movement in these areas and how they interact. While, for example, States sometimes appear to ward off cross-border movement in these areas to protect their national moral standards, in other situations they choose to – or are obliged under European law to – accommodate such mobility in order to protect the interests of vulnerable parties involved. This research thereby observes and clarifies the dynamics in decision-making regarding these issues, analysing and explaining how various areas and levels of law interact.

This volume has been written as a PhD thesis by Nelleke Koffeman (Europa Institute, Leiden University), supervised by Prof. Dr. Janneke Gerards (Radboud University) and Prof. Dr. Rick Lawson (Leiden University).


Table of Contents (p. 0)


Chapter 1. Introduction (p. 1)


Chapter 2. ECHR (p. 15)

Chapter 3. EU (p. 73)

Chapter 4. Germany (p. 139)

Chapter 5. Ireland (p. 199)

Chapter 6. The Netherlands (p. 257)

Chapter 7. Conclusions Case Study I (p. 317)


Chapter 8. ECHR (p. 345)

Chapter 9. EU (p. 403)

Chapter 10. Germany (p. 469)

Chapter 11. Ireland (p. 531)

Chapter 12. The Netherlands (p. 565)

Chapter 13. Conclusions Case Study II (p. 607)


Chapter 14. Conclusions (p. 629)

Executive Summary (p. 649)

Executive Summary (in Dutch) (p. 657)

Bibliography (p. 667)

Table of Cases (p. 701)

Index (p. 715)

Curriculum Vitae (p. 723)

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Human Rights Research Series

The Human Rights Research Series’ central research theme is the nature and meaning of international standards in the field of human rights, their application and promotion in the national legal order, their interplay with national standards, and the international supervision of such application. Anyone directly involved in the definition, study, implementation, monitoring, or enforcement of human rights will find this series an indispensable reference tool.

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Editorial Board: Prof. dr. Antoine Buyse (Utrecht University), Prof. dr. Fons Coomans (Maastricht University), Prof. dr. Yvonne Donders (Chair - University of Amsterdam), Dr. Antenor Hallo de Wolf (University of Groningen), Prof. dr. Kristin Henrard (Erasmus University Rotterdam), Prof. dr. Nicola Jägers (Tilburg University), Prof. Titia Loenen (Leiden University) Prof. dr. Janne Nijman (T.M.C. Asser Instituut) and Prof. dr. Brigit Toebes (University of Groningen).

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