Cases condemned by the ECHR (European Court of Human Rights)
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Case of Paradiso and Campanelli Italy [1](2017):
In 2015, the European Court of Human Rights had ruled against the Italian law with a decision of January 27, 2015. In this case, the Italian court had condemned an Italian couple who had used surrogacy in Russia in 2011. They had brought the child back to Italy with a falsified birth certificate (as neither client was biologically related to the child) and asked the Italian authorities to recognize the child as their own. The Italian authorities refused and placed the child under guardianship before it was adopted by another couple. In January 2015, the commissioning parents appealed to the ECHR, which initially condemned Italy on the grounds of “the right of parents to establish a family”.
However, in 2017, the Italian court appealed at the request of the Italian government, and the ECHR recalibrated its ruling. On January 24, 2017, the ECHR ruled that Italy did not violate the European Convention on Human Rights, because in the absence of a biological link, the state is not obliged to recognize the legal parentage of couples who resort to surrogacy. In addition, it emphasizes the short duration of the cohabitation of the commissioning parents, the legal weakness of the family ties and, despite the existence of a parental project, its decision concludes on the “absence of family life”.
This decision restores the protection of children against illegal practices, some of which, such as surrogacy, can rightly be described as trafficking in human beings. The Grand Chamber recalls that “the general interest prevails over the desire for parenthood (…) agreeing to leave the child with the applicants would have been tantamount to legalizing the situation created by them, in violation of important rules of Italian law”.
This revision of the ECHR decision thus consolidates the position of the Grand Chamber, which now considers that [2]“if, in addition to the absence of a genetic link, there is an absence of family life, the commissioning parents cannot rely on a possible violation of Article 8” of the ECHR. The absence of a family life is considered on the basis of the short duration of the cohabitation and the legal precariousness of the ties, despite the existence of a parental project and the quality of the emotional ties.
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Judgment D. v. France (July 16, 2020[3]:
The European Court of Human Rights’ decision on July 16, 2020, pertains to the French authorities’ refusal to transfer the birth certificate of a child born to a surrogate mother in Ukraine to the French civil registry. The birth certificate named the commissioning women of the couple as the legal mother, despite her not having given birth. The family situation involved a French couple comprising a man (the biological father), a woman (the genetic mother), and a surrogate mother (the woman who gave birth). The Ukrainian birth certificate identified the couple members as the child’s parents, resulting from the surrogacy arrangement.
Before the European Court of Human Rights, the applicants argued that the denial of their request for a copy of the foreign birth certificate designating the commissioning woman as the child’s mother constituted an excessive interference with their “right to respect for their private life.” This argument rested on the fact that the intended mother was the child’s genetic mother.
The Court noted that it had previously ruled, in the Mennesson and Labassee judgments on June 26, 2014, that the mere presence of a genetic link does not automatically mandate the recognition of the parent-child relationship solely through transcription on the birth certificate.
The Court affirmed that the rejection of the request for transcription of the child’s birth certificate did not constitute a disproportionate interference with the child’s “right to respect for private life” merely because the commissioning woman was the child’s genetic mother. This was contingent upon establishing the parent-child relationship between the commissioning woman and the child through alternative means, notably adoption.
It was emphasized that “adoption has the same effects as the transcription of the foreign birth certificate concerning the recognition of the parent-child relationship between the child and the commissioning woman”[4].
Consequently, there was no infringement of Article 8 of the Convention (right to respect for private life), considered individually or in conjunction with Article 14 (prohibition of discrimination).
This judgment confirms that States are not obligated to transcribe the foreign civil status record of a child born through surrogacy if the biological father and genetic mother are the parents, even when the child was conceived using the latter’s egg. Adoption, which facilitates a comprehensive assessment of the child’s best interests, is deemed sufficient.
The ECHR’s position aligns with the legal principle that the mother is the one who gives birth. Increasingly, these judgments, which involve the adoption of one of the couple’s members, are utilized by States to protect the child’s best interests while condemning surrogacy practices.
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Case of K.K. and others v. Denmark [5](2022)
Denmark had denied the adoption request of the applicant, K.K., for applicants C1 and C2, who are twins born through surrogacy in Ukraine. K.K. and her partner, the biological father of the children, had engaged in surrogacy with a surrogate mother who received a substantial sum of money in exchange for delivering the children. According to Danish law, adoption is prohibited if the consenting person has received payment.
In 2022, the European Court of Human Rights (ECHR) condemned Denmark’s decision, stating that it violated Article 8 of the European Convention on Human Rights, which relates to the “Right to respect for private and family life,” specifically concerning the applicant children’s right to privacy. The ECHR concluded that the Danish authorities had failed to strike a fair balance between the child’s interests and societal interests in limiting the negative consequences of commercial surrogacy.
However, this decision was reached with a vote of 4 to 3, with Denmark, Finland, and Turkey dissenting. They argued that commercial surrogacy essentially amounts to child trafficking and that the concept of the child’s best interests should not be used to compel states to endorse practices that resemble child trafficking.
These examples illustrate that there are still significant differences of opinion within the ECHR regarding surrogacy. Recent developments in the Court’s jurisprudence on this issue lean toward recognizing states’ authority to regulate parentage through surrogacy, especially in international cases, and address the commodification of both bodies and children through this practice.
The individual and discretionary power of judges, as observed in K.K. et al. v. Denmark, may potentially become a tool for directing opposition to surrogacy toward the judiciary. Therefore, efforts against this practice should be aimed at judges, as they hold significant judicial authority.
[1] Institut Européen de Bioéthique “https://www.ieb-eib.org/fr/justice/debut-de-vie/procreation-medicalement-assistee/affaire-paradiso-et-campanelli-c-italie-gpa-470.html”
[2] Institut Européen de Bioéthique, “https://www.ieb-eib.org/fr/justice/debut-de-vie/gestation-pour-autrui/cour-europeenne-des-droits-de-l-homme-gestation-pour-autrui-553.html”
[3] Institut Européen de bioéthique : https://www.ieb-eib.org/fr/justice/debut-de-vie/gestation-pour-autrui/arret-d-c-france-gestation-pour-autrui-transcription-de-l-acte-de-naissance-a-l-etat-civil-551.html
[4] Dalloz Etudiant : https://actu.dalloz-etudiant.fr/a-la-une/article/gpa-conventionnalite-de-la-jurisprudence-francaise-a-legard-de-la-mere-dintention/h/9bc0feeb82e28b974830a2189652857a.html?tx_ttnews%5Blink%5D=actualite%2Fa-la-une%2Fh%2Fb0e66b0409%2Fbrowse%2F4%2Farticle%2Fportee-de-la-cession-du-droit-a-limage.html#:~:text=La%20d%C3%A9cision%20rendue%20le%2016,la%20m%C3%A8re%20l%C3%A9gale%20alors%20qu’
[5] “https://juridique.defenseurdesdroits.fr/index.php?lvl=notice_display&id=46807&opac_view=-1”