SURROGACY ARRANGEMENTS AND BEST INTERESTS OF THE CHILD - DIVA PORTAL
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SURROGACY ARRANGEMENTS
AND BEST INTERESTS OF THE
CHILD
European Perspective
Orsolya-Zsuzsanna Csortán
Spring Semester 2020
Independent written essay within the field of constitutional law and human rights, 15.0 hp
Master’s Programme in Constitutional Law and Human Rights, 60.0 hp
Supervisor: Markus NaarttijärviTable of content
Abbreviations ............................................................................................................................ 3
1 Introduction ....................................................................................................................... 4
1.1 Background ................................................................................................................ 4
1.2 Aim and Objective ..................................................................................................... 6
1.3 Method ....................................................................................................................... 6
2 The child’s best interests in surrogacy arrangements ................................................... 7
2.1 The Child’s best interests principle ........................................................................... 7
2.2 Children’s right not to be turned into a commodity or to be sold.............................. 8
2.3 Children’s right to identity....................................................................................... 10
3 ECtHR jurisprudence in surrogacy cases ..................................................................... 13
3.1 Mennesson v. France- The first case ....................................................................... 13
3.2 Paradiso and Campanelli v. Italy- No genetic link .................................................. 15
3.3 C and E v. France- New way forward?.................................................................... 18
4 Conclusion ........................................................................................................................ 19
Bibliography ........................................................................................................................... 21
Literature ........................................................................................................................... 21
Articles and Journals ......................................................................................................... 21
Case-law from the European Court of Human Rights ...................................................... 22
International Treaties ........................................................................................................ 22
UN Documents .................................................................................................................. 22
News Articles .................................................................................................................... 23
Other ................................................................................................................................. 23Abbreviations UNCRC United Nations Convention on the Rights of the Child CRC Committee on the Rights of the Child ECHR European Convention on Human Rights ECtHR European Court of Human Rights
1 Introduction
1.1 Background
Surrogacy,1 as a situation where a woman gestates a pregnancy on behalf of another
person, on the understanding that she will hand the child over to them on its birth has been
practiced for centuries. As Brinsden presents, references to traditional surrogacy can be found
in the Holy Bible, in the Old Testament at around 2000 BC. Married couple Abraham and Sarah
could not conceive on their own. Sarah turned to her maiden, Hegar, who eventually bore a son,
Ishmael, for the couple. Also, there is reference to traditional surrogacy in the Hammurabi Code
of Law, which dates back to 1800 BC, stating that: ‘A childless wife might give her husband a
maid to bear him children, who were reckoned hers”. 2 Since then recent advancements in
surrogacy has given new hope to many people who wished to become parent but faced barriers,
including LGBTQ people and people experiencing infertility. However, it also raised complex
legal, ethical issues and questions about the impact on the human rights of the various parties
involved at every stage of the process. These fundamental issues include, but are not limited to:
the nature of parenthood and the attributes of human dignity, individual autonomy, and
distinction between what can be considered an object of commerce, what can be only
considered as a gift and what is prohibited to be transferred. 3 In this sense, most countries
prohibit surrogacy arrangements on the grounds that it is both degrading and exploitative of
vulnerable women, and they argue that it goes against the best interest of children in general,
because it has the effect of reducing them to a commodity that can be bought and sold.4 It is
clear that various interest are at stake, all worthy of protection, in surrogacy arrangements but
one must not forget that at the center of it stands the child who was conceived and born this
1
An international surrogate arrangement entails that intended parents from one state enter into
a surrogacy agreement with a surrogate from another state. These agreements can be divided
into two main categories: altruistic surrogacy and commercial surrogacy. It is called altruistic
because the surrogate either does not receive any compensation for the ‘service’ she provides
or only receives compensation to cover reasonable expenses that comes from pregnancy, such
as work loss and medical bills. In the case of commercial surrogacy, the intended parents give
a compensation to the surrogate mother which goes beyond the reasonable expenses. Also, a
surrogate arrangement can be either gestational or traditional. In a traditional surrogacy the
surrogate mother uses her own gamete, making her the genetic mother of the child. The male
gamete might come from the intended father or form a third-party donor. In a gestational
surrogacy the surrogate mother has no genetic relationship to the resulting child. In these cases,
either the intended mother’s gametes are an egg donor’s. Definition provided by the Council of
General Affairs and Policy of the Hague Conference, ‘The Desirability and Feasibility of
Further Work on the Parentage/Surrogacy Project (Prel. Doc. 3B)’, Hague Conference on
Private International Law, Hague, 2 March 2014, Anexx A, available at:
https://assets.hcch.net/docs/6403eddb-3b47-4680-ba4a-3fe3e11c0557.pdf, accessed: 25 May
25 2020
2
Peter R. Brindsen, ‘Surrogacy’s Past, Present, and Future’, In Sills, E.S. (ed.), Handbook of
gestational Surrogacy: International Clinical Practice and Policy Issues, Cambridge University
Press, 2016, pp. 1-8, pg. 1
3
Yasmine Ergas, ‘Babies without Borders: Human Rights, Human Dignity, and the Regulation
of International Commercial Surrogcy’, Emory International Law Review, Vol. 27, 2013,
4
Roberto Andorno, ’Intercountry surrogacy and the best interest of the child’, In: Luisa Neta
& Rute Teixeira Pedro, Debatendo a procriacao medicamente assistida, Porto, Faculty of Law
of the University of Porto, pp. 127-136, pg. 128
4way. Just like in the case of all children, children born through surrogacy arrangements have to
be recognized as right holders.5 As a conclusion, they are entitled to enjoy all the rights that are
guaranteed under the United Nations Convention on the Rights of the Child. Moreover, as
Article 3(1) of the Convention on the Rights of the Child states: ‘In all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration’. Therefore, in all actions, that includes actions concerning surrogacy
arrangements, be that the relationship between the child and the intended parents, their
citizenship or their welfare, the best interest of the child has to prevail over other considerations.
Although prohibiting surrogacy arrangements and not recognizing its effects on their
territory, States are taking preventive approach in order to discourage their citizens from going
abroad to engage in surrogacy agreements, Glyn claims that this ex-post facto approach is
ineffective and States should focus on ex-ante regulation, before the arrangement takes place.
She bases her argument on the grounds that children’s right have to prioritized.6 One of the
most infamous case which best illustrates what happens to children in the absence of coherent
regulations and in the presence of ex-post facto approach is the case of the Balaz twins. This
case concerned the Balaz twins who were born through surrogacy arrangements in India. Their
birth certificates were issues listing the intended parents, a German couple, as the legal parents
of the children. The German consulate refused to issue passport for the children, arguing that
the twins had no legal filiation with the intended parents considering that surrogacy
arrangements are prohibited in Germany. The parents requested Indian passports, which named
the intended father, Jan Balaz, as the father and the surrogate, as the mother. However, the
Indian Government revoked the passport on the ground that there was an inconsistency between
the birth certificates and the passport regarding the name of the mother. In order to protect the
children from becoming stateless, the intended parents turned to the judiciary. The Gujarat High
Court held that the twins were Indian nationals as they were born to an Indian mother. The
Court urged the authorities to solve the twin’s situation by adoption which started new legal
issues because of the adoption regulations. After two years after their birth, the children were
able to leave India as they were issues with German visa and Indian exit documents. The
intended parents were allowed to adopt them under German law.7 This case, and many others,8
show that the different regulations that crisscross international surrogacy give rise to various
difficult situations.
As it will be shown in the next chapters, surrogacy is a controversial practice in Europe
too, there is no consensus on its legality or on how it should be regulated. For example Italy,
France and Germany prohibit all forms of surrogacy. In the UK, UK nationals can engage in
altruistic surrogacy agreements. Ukraine and Russia permit all forms of surrogacy arrangements
5
UN Committee on the Rights of the Child (CRC), General Comment No. 14 (2013) on the
right of the child to have his or her interests taken as a primary consideration (art. 3 para. 1), 29
May 2013, CRC/C/GC/14, para. 16(b) available
at:https://www.refworld.org/docid/51a84b5e4.html, accessed: 25 May 2020
6
Claire F. Glyn, ‘Outsourcing Ethical Dilemmas: Regulating International Surrogacy
Arrangements’, Medical Law Review, Vol. 24, No. 1, pp.59-75, 2016, pg. 70
7
Lily Sronkoski, ‘Surrogacy in India: Jan Balaz vs. Union of India’
https://www.arcgis.com/apps/Cascade/index.html?appid=43c616cb5fa54d009061b12d7d6c3c
42 , accessed: 25 May 2020
8
For instance the Case of Baby Manji- a child commissioned by a Japanese couple who
divorced before the baby was born.
5not just for their nationals but also for foreigners.9 Due to the lack of harmonization within the
legal systems of Member States of the Council of Europe, it does not come as a surprise that
the European Court of Human Rights faces a great challenge to define and apply the Convention
rights in the field of surrogacy.10 Up until today the Court had ruled on several cases in the
context of international surrogacy arrangements, the leading cases concerned issues such as
legal recognition between a child born through surrogacy arrangement and his genetic father
and the removal of a child from his intended parents due to the lack of parentage. In regards to
this, the thesis will explore whether there is a consistent approach and balancing of interests in
the Court’s jurisprudence in the surrogacy context from a children’s rights perspective.
1.2 Aim and Objective
The aim of this thesis is to analyse the human rights dimensions of surrogacy
arrangements, focusing on the rights of children who are born through these arrangements and
face various issues right after that they were born. The first main objective is to explore what
role the principle of the best interest of the child plays in these arrangements and what does this
principle mean for the individual child in contrast with children in general in the context of
surrogacy. The second main objective is to examine the European Court of Human Rights
jurisprudence in surrogacy cases in order to explore to which extent the Court has safeguarded
the best interest of the child who was conceived and born through surrogacy arrangements
abroad and whether there is a coherent approach in the Court’s reasoning when it balances the
different interest at stake in such cases.
1.3 Method
In order to accomplish the identified goals the chosen method is the traditional legal
method. Hence, I will explore the principle of the child’s best interest as it is present in different
legal documents and conventions and I will discover its applicability in surrogacy arrangements
through the eyes of various scholars. Also, I will explore through a theoretical doctrinal
approach, what is expresses in academic works on the chosen field, the key judgments of the
ECtHR. Moreover, in order to provide a better understanding on some of the issues that will
arise in regard to the ECtHR reasoning, I will use ECHR methodology.
9
Alice Cuddy, ‘Where in Europe is surrogacy legal?’
https://www.euronews.com/2018/09/13/where-in-europe-is-surrogacy-legal, 12 September
2018, accessed: 26 May 2020
10
Andrea Mulligan, ‘Identity Rights and Sensitive Ethical Questions: The European
Convention on Human Rights and the Regulation of Surrogacy Arrangements’, Medical Law
Review, Vol. 0, No. 0, pp.1-27, pg. 2
62 The child’s best interests in surrogacy arrangements
After exploring what the principle entails, this chapter will argue that the principle ‘best
interest of child’ in surrogacy arrangements demands different action from the States in case of
an individual child, who has already been born through this arrangement, as opposed to children
in general for the reasons that will be presented below.
2.1 The Child’s best interests principle
Article 3 paragraph 1 of the United Nation Convention on the Rights of the Child states:
‘In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interest of
the child shall be a primary consideration’.
The best interest of the child is a threefold concept.11 It is a right, a principle and a rule
of procedure. It is a right as it gives every child in all actions concerning them the right to have
its best interest taken into primary consideration, be that a private or public decision making.12
It can be invoked before a court as a free-standing right, it does not need to go in conjunction
with any other right of the Convention.13 It is also, a principle, it is one of four holistic principles
that the Convention contains. Also, since all the Articles in the Convention must be interpreted
and assessed in the light of the best interest principle, it is considered to be an overreaching
principle.14 If a right protected under the Convention contains more than one interpretation, the
interpretation that serves the child’s best interest to the fullest must be chosen.15 The child’s
best interest is also a rule of procedure. It obligates the states that in every decision or procedure
affecting a child to present how the best interest principle has been applied and complied with.16
It is required that states show that the decision has included an assessment on how the child will
be affected by it, both positive and negative impacts.17
There is no correct definition on what the best interest of the child in a certain issues is,
meaning that it has to be determined from the facts and circumstances of each case by analyzing
the situation the child is, for individual decisions, and the need of the children, for decisions
concerning children in general.18 Even if the principle requires that that best interest of the child
to be a primary consideration, it does not mean that children’s interests are absolute.19
Children’s rights are at risk due the non-harmonizing domestic laws on legal parentage
and due to the lack of consensus between States over the legality of surrogacy. As it will be
11
Committee on the Rights of the Child, ‘General Comment No.14 (2013) on the right of the
child to have his or her best interest taken as a primary consideration (art.3, para.1), pg.4
12
Ibid
13
Ibid
14
Ibid
15
Ibid
16
Ibid
17
Ibid
18
Ibid, pg. 9
19
Thoko Kaime, ‘The Convention on the Rights of the Child: A Cultural Legitimacy Critique’,
Europa Law Publishing, 2011, pg. 106
7shown, in most of the cases the States argue that the reason for rejecting the recognition of legal
parentage, even if goes against the principle of the best interest of the child, is because they do
not want to create a loophole in the prohibition of surrogacy on their territory by offering the
possibility for couples to engage in international surrogate arrangements.
2.2 Children’s right not to be turned into a commodity or to be sold
The potential commodification of children in commercial surrogacy is one of the
strongest arguments against these arrangements. According to this argument, children born
from surrogacy can be viewed as “commodities to be bought in the marketplace”.20 Turning
children into object of sale, devalues their life and human life in general.21 Some scholars claim
that the issue of commodification is present in altruistic surrogacy arrangements too: “The child
then can be seen as the product of an expensive business transaction. Technically, the
commissioning parents may be buying gestational services but they feel they are buying a
baby”.22 This reduction of children, their potential commodification is clearly illustrated in the
‘Baby Grammy’ case. Since surrogacy is illegal in Australia, an Australian couple travelled to
Thailand and used a broker to engage a woman as a gestational carrier. She became pregnant
with twins, but at 4 months, the male twin was found to have Down’s syndrome and a congenital
heart condition. The clinic asked the woman to abort the child but she refused, citing her
Buddhist beliefs. After she gave birth, the intended parent took the healthy female twin, leaving
Gammy, the critically ill child behind.23 In this case, it can be easily argued that the inteded
parents considered the ill child as a commodity that did not meet their expectations and for this
reason they chose to refuse him.
There is neither an explicit prohibition of surrogacy nor an explicit recognition in
international law stating one’s right to enter into a surrogacy contract. Also, there are a very
few international human rights norms addressing the children’s situation that have been
articulated and most of them are non-binding. 24 For this reason, when discussing whether
children born from surrogacy arrangements may be viewed as commodities that were simply
bought, it is important to assess the role of regulation of such arrangements. This lack of
regulations does not only fails to protect children from becoming a commodity, it also opens
the door for the risk of illegal sale of children. It is important to note that international customary
law and treaties explicitly prohibit trafficking and sale of children. 25 Article 35 of the
Convention on the Rights of the Child states that: “States Parties shall take all appropriate
national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in
20
Claire I. Achmad, ‘Children’s Rights in International Commercial Surrogacy. Exploring the
challenges from a child rights, public international human rights law perspective, PhD thesis,
Leiden University, pg. 89
21
Jane Stoll, ’Surrogacy Arrangements and Legal Parenthood. Swedish Law in a Comparative
Context’, PhD Thesis, Uppsala University, printed by Elander Sverige AB, 2013
22
Michael Freeman, ‘The New Birth Right? Identity and the Child of the Reproductive
Revolution, 4 International Journal of Children’s Rights, pp.273-298, 1996, pg. 296
23
https://www.theguardian.com/commentisfree/2014/aug/04/baby-gammy-thailand-
surrogacy-repulsive-trade-pattaramon-chanbua, accessed 24.05.2020
24
Roberto Andorno, ‘Intercountry surrogacy and the best interest of the child’, In: Luisa Neta
& Rute Teixeira Pedro, Debatendo a procriacao medicamente assistida, Porto, Faculty of Law
of the University of Porto, pp.127-136, 2018, pg. 130
25
Ibid.
8children for any purpose or in any form”. The prohibition of the sale of children can be found
in article 1 of the Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography. In this sense, the “sale of children” is defined
in Article 2(a) of the Optional Protocol to the Convention on the Rights of the Child and the
Sale of Children, Child Prosecution and Child Pornography which states, that: “sale of children
means any act or transaction whereby a child is transferred by any person or group of persons
to another for remuneration or any other consideration”.
In this sense, Snyder argues than in developed countries, where commercial surrogacy
is carefully regulated and where medical and legal entities implement and monitor the process
effectively, the sale of children is more or less avoided. 26 In regards to this, the Special
Rapporteur27 points out that it is accurate to consider that unregulated commercial surrogacy
systems often lead to the sale of children, but it is not accurate to state that regulated commercial
surrogacy systems avoid the sale of children. The Committee on the Rights of the Child stated
in its concluding observation on reports submitted by the US under article 12(1) of the Optional
Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution
and child pornography, that:” […] The Committee is nevertheless concerned that widespread
commercial use of surrogacy in the State party may lead, under certain circumstances, to sale
of children”.28 With other words, even if a State manages to regulate such arrangements, the
risk does not disappear.
Some scholars even argue that children born through surrogacy arrangement, regardless
of the type of surrogacy, are in a situation of slavery. They base their argument on Article 1 of
the Convention against Slavery which defines slavery as “the status or condition of a person
over whom any or all of the powers attaching to the right of ownership are exercised.” In this
sense, they claim that the child is commoditized, meaning that her or his attribute of the right
of ownership, the “abusus”, is exercised on them.29 It is an interesting claim, it might even seem
to be as a far-fetched opinion but one must aknowledge the importance of considering this issue
from various perspectives.
Generally, the interest of not becoming a commodity as a form of protection is aimed at children
as a group, but of course this interest can be expressed as an interest for the individual child
26
Steven H. Snyder, “Reproductive Surrogacy in the United States of America”, Handbook of
Gestational Surrogacy, Cambridge University Press, 2016, pp. 276-286, pg. 285
27
Report of the Special Rapporteur on the sale and sexual exploitation of children, including
child prostitution, child pornography and other child sexual abuse material, A/HRC/37/60, para.
68
28
Committee on the Rights of the Child, ’Concluding observations on the combined third and
fourt reports subbmitted by the United States of America under article 12(1) of the Optional
Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution
and child pornography’, CRC/C/OPSC/USA/CO/3-4
https://undocs.org/CRC/C/OPsc/USA/CO/3-4
29
Contribution of the European Centre for Law and Justice to the Report of the Special
Rapporteur on the sale and sexual exploitation of children, including child prostitution, child
pornography and other child sexual abuse material relating to Safeguards for the protection of
the right of children born from surrogacy arrangements, 31 May 2019, pg. 7,
http://media.aclj.org/pdf/ECLJ-Contribution-SR-Report-for-Safeguards-for-the-protection-of-
the-rights-of-children-born-from-surrogacy-arrangements-May-2019.pdf
9too. The next section will explore the overriding interest of the individual child, the interest to
have a legally recognized relationship with her or his parents.
2.3 Children’s right to identity
This section argues that interest of not being reduced to a trading commodity is
important but for the individual child, who has already been born and have been moved between
different states, the prevailing interest is to have her or his relationship with the intended parents
legally recognized.
The Convention on the Rights of the Child was the first document to recognize
children’s right to identity. Article 7 of UNCRC affirms that every child has the right to acquire
a nationality and the right to know and be cared for by his or her parents as far as possible. In
this sense states have the positive obligation to ensure every child’s right to nationality and to
prevent children from becoming stateless. This obligation is better highlighted in the second
paragraph of Article 7 which states that implementation of this right is ensured by domestic
law. This entails that states can determine the procedures for the acquisition or loss of
nationality, but these regulations have to be in accordance with the relevant international
instruments.30 Also, Article 8 of the UNCRC gives a child the right to know his or her origin or
identity and it places a positive obligation on signatory states to implement policies that enforce
and protect these rights.
I will not discuss what ‘identity’ entails or what could be an adequate definition for it
as it is a far-reaching dicussion and could be a topic of another thesis. The focus in this section
is on the risk that surrogacy arrangements present for children’s identity.
In surrogacy cases at least two dimensions of the issues regarding the right to identity
can be explored which likely have a distinct impact on the child’s right to identity. On one hand,
the child either has only half genetic link with the intended parents, or no genetic link at all due
to the fact that genetic materials are mostly donated anonymously. Without knowing where
they came from, who are their genetic parents, the identity of the woman who gave birth to
them, the children can find themselves in an “identity vacuum, lacking knowledge of their
personal narrative”. 31 On the other hand, the international nature of surrogacy arrangement
leads to situations where the child grows up in a place and culture that is geographically distant
from the place where she or he was born, a place different from their ethnic and cultural
origins.32 Lacking the knowledge of one’s cultural and ethnic origins, as they are fundamental
aspect of identity, results in children being ethnically and culturally dislocated and isolated. In
this sense, Achmad points out that Article 16 of the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption requires that special
considerations should be given to the child’s ethnic and cultural background for children who
30
Ineta Ziemele, ‘A Commentary on the United Nations Convention on the Rights of the Child,
Article 7: The Right to Birth Registration, Name and Nationality, and the Right to Know and
Be Cared for by Parents, Leiden- Boston, Martinus Nijhoff Publishers, 2007, pg. 24
31
Claire I. Achmad, ‘Children’s Rights in International Commercial Surrogacy. Exploring the
challenges from a child rights, public international human rights law perspective, PhD thesis,
Leiden University, pg. 60
32
Ibid, pg. 59
10are adopted intercountry, she argues that this requirement should be extended by analogy to the
surrogacy context.33
The right to identity for children born through surrogacy arrangements in the light of
the best interest principle can be discussed from three perspectives. On one hand, the knowledge
about its origins helps the development of identity. On the other hand, the different kind of legal
statuses such as nationality and the granting of legal parentage are fundamental elements of a
child’s personal identity and denying them has detrimental effects on the child.34 Lastly, it has
to be taken into consideration that early childhood has been proven to be essential for the
development of the child’s cultural and personal identity.35 Not too long after birth children can
recognize their parents or other caregivers, and they engage actively in non-verbal
communication. Also, young children form strong mutual attachments with their parents or
caregivers, relationships built this way provide the children with the sense of physical and
emotional security, as well as consistent care and attention. The result of this relationship the
child starts to build a personal and cultural identity. As a consequence, the primary caregivers
are the ones through who the child can enjoy his or her right to identity.36 All these has to be
taken into account when deciding on the child’s situation.
Before turning to the European Court of Human Rights’ approach to issues concerning
children’s identity in the context of surrogacy it is interesting to look at the Court’s identity
jurisprudence.
Although the European Convention on Human Rights does not explicitly includes the
right to preserve one’s identity, Article 8 of the Convention protects the right to respect for
private and family life and according to the ECtHR’s case-law, the right to identity falls within
the scope of the rights protected under Article 8 of the ECHR.37 In this sense, in case of Odievre
v. France the Court held that the Convention protects a fundamental interest “in obtaining
information necessary to discover the truth concerning important aspects of one’s personal
identity, such as the identity of one’s parents, birth, and in particular the circumstances in which
a child is born, forms a part of a child’s, and subsequently the adult’s, private life guaranteed
by Article 8 of the Convention ”.38 The phrase “circumstances in which a child is born” is
important in the context of children born through surrogacy arrangements. Another significant
text from the decision regard to this is the following: [people]“have a vital interest, protected
by the Convention, in receiving the information necessary to know and to understand their
childhood and early development”. 39 The Court continued to render judgments with same
approach to identity questions. In the same year the Court delivered its judgment in the case of
33
Ibid, pg. 61
34
Petra de Sutter, Report ‘Children’s Rights related to surrogacy’, Committee on Social Affairs,
Health and Sustainable Development of the Parliamentary Assembly, 21 September 2016
35
Committee on the Rights of the Child (CRC), ‘General Comment no.7: Implementing Child
Rights in Early Childhood’ 20 September2006, UN Doc CRC/C/GC/7/Rev.1, para. 6,
https://www.refworld.org/docid/460bc5a62.html
36
Ibid, para.16
37
Case of Odievre v. France, Application No. 42326/98: “Article 8 protects a right to identity
and personal development, and the right to establish and develop relationships with other human
beings and the outside world.”, para.29
38
Odievre v. France, Application No. 42326/98, para. 29
39
Ibid., para. 42
11Jaggi v. Switzerland.40 Andreas Jaggi, a Swiss national requested a DNA test on the deceased
to ascertain if deceased was his biological father. The Court claimed that the right to identity
includes the right to know one’s parentage as a result, it held that the refusal of the Swiss
authorities to authorize the DNA testing violated the applicant’s right to private life.41In the
case of Phinikaridou v. Cyprus,42 which highlighted the importance of the circumstances of
birth and access to information, the Court stated that: it is “necessary to discover the truth
concerning important aspects of one’s personal identity, such as the identity of one’s parents”.43
In the case of S.H. and Others v. Austria, a case concerning in vitro fertilization (IVF), the court
stated that the State should “find an appropriate and properly balanced solution between
competing interest of donors requesting anonymity and any legitimate interest in obtaining
information of a child conceived through artificial procreation with donated ova or sperm”.44 A
short conclusion can be drawn from these texts, which is that the ECtHR confirms that the right
to identity is not an absolute right and a balance must be struck between private and public
interest involved in each case.45
In the context of children born through surrogacy arrangements the most important
judgments were rendered in the case of Mennesson v. France and Paradiso and Campanelli v.
Italy. In this chapter I will not discuss the cases in detail as they will explored in the next chapter.
The identity question in the case of Mennesson was approached in regards to the best
interest of the child, which was paramount to the Court’s proportionality analysis. In this case,
the Court noted that depriving children of filiation negatively impacts the fundamental aspect
of their identity protected by Article 8 and conflicts with their best interests which has to be
taken into account in all decisions that concern them. The Court pointed out that the children
were facing legal uncertainties due to their uncertain citizenship. The Court also noted that
under these circumstances the children were unable to inherit from their intended parents. Also,
the Court defined the interest of the child in relation to the children’s biological link with their
genetic father, considering the biological link crucial for the children’s identity.46 For these
reason, the Court held that France had exceeded its margin of appreciation. In the case of
Paradiso and Campanelli v. Italy, the Court, again, had to deal with the identity aspect of the
child’s right to private life after being born through a surrogacy arrangement. The difference
between this case and the case of Mennesson is that, in the Paradiso case the child had no
biological link with the intended parents and for his reason the child was without any legal
identity for two years.47As a result of this, the Court observed that this lack of identity caused
the child disadvantage which goes against his rights protected by the UN Convention on the
Rights of the Child.48 This type of reasoning is missing from the Grand Chambers decision
40
Jaggi v. Switzerland, Application No. 58757/00, 03 July 2003
41
Ibid, para. 37
42
Phinikaridou v. Cyprus, Application No. 23890/02
43
Ibid, para. 45
44
S.H. and Others v. Austria, Application No. 57813/00, 03 November 2011, para. 84
45
Claire I. Achmad, ‘Children’s Rights in International Commercial Surrogacy. Exploring the
challenges from a child rights, public international human rights law perspective, PhD thesis,
Leiden University, pg. 226
46
Ivana Isailovic, ‘The ECtHR and the Regulation of Transnational Surrogacy Agreements.’,
Blog of the European Journal of International Law, https://www.ejiltalk.org/the-ecthr-and-the-
regulation-of-transnational-surrogacy-agreements/, accessed 23.05.2020
47
Paradiso and Campanelli v. Italy, Application No. 25358/12, para. 85
48
Paradiso and Campanelli v. Italy, Application No. 25358/12, para. 85
12which raises the possibility to argue that the final decision in the case of Paradiso was contrary
to the child’s right to nationality, identity and by this, it is contrary to the general best interest
of the child.
Bracken argues that there is an inconsistency in the Court’s evaluation of the best interest
of children.49 She notes that these cases are the best example to show that a constant tension
exists in cross-border surrogacy cases between the interests of the individual child and interests
of children in general. She points out that in the case of Mennesson, the reason for not
recognizing the parent-child relationship was based on the French authorities’ policy to
discourage their population from accessing surrogacy abroad. In the same manner, in the case
of Paradiso, the Italian authorities claimed that their aim is to protect woman and children that
can be potentially affected by practices that are considered problematic from an ethical point of
view. 50 It can be observed that in both cases the States stated the same legitimate aim but the
balancing of interest was dealt differently.
3 ECtHR jurisprudence in surrogacy cases
Since most of the member states prohibit all forms of surrogacy the ECtHR jurisprudence
on the matter revolves around cases regarding the refusal by domestic authorities to recognize
a parent-child relationship in respect of children born as a result of foreign surrogacy
arrangement. Taking into account that there is no consensus in Europe on the lawfulness of
surrogacy arrangements or the legal recognition of the relationship between intended parent and
children thus conceived abroad, the Contracting States enjoy a substantial margin of
appreciation in this area which depending on the issues at stakes will be narrow one or wide
one. In this chapter I will present the most relevant judgments rendered by the Court.
3.1 Mennesson v. France- The first case
This case concerned a French heterosexual couple who travelled to California to enter
into a surrogacy contract which led to the birth of twins. According to the French Civil Code,
even altruistic surrogacy arrangements are illegal in France which meant that the applicants had
no domestic opportunity to have a child through surrogacy. The arrangement took place in
California where the procedure is legal, and they used the father’s sperm along with donor eggs.
By the order of the Supreme Court of California, the intended parents were legal parent of the
child pursuant. As they returned to France, the children’s birth certificates were entered in the
French central register of births, marriages and deaths but the public prosecutor requested the
annulment of the registration on the basis that it was contrary to the principles of French law
“to give effect, in terms of the legal parent-child relationship, to a surrogacy agreement”. The
applicants complained that their rights to private and family life of both the parents and the
children, protected by Article 8, had been violated. The Court conducted its regular
proportionality analysis, considering whether the State’s action was in accordance with the law,
if it persuaded a legitimate aim and if it was necessary in a democratic society. The Court
concluded that the measure in the case was in accordance with the law, and that the legitimate
49
Lydia Bracken, ‘Assessing the Best Interests of the Child in Cases of Cross-Border
Surrogacy: Inconsistency in the Strasbourg Approach?’, Journal of Social Welfare and Family
Law, 2017, pg. 9
50
Ibid
13aim being pursued was the protection of children and surrogate mothers, which is included in
the listed legitimate aims in Article 8(2): “protection of health” and “the protection of the rights
and freedom of others”.51 The Court’s focused more on the questions whether the contested
measure was necessary in a democratic society, and on the margin of appreciation.52 The Court
reiterated that the scope of the State’s margin of appreciation varies depending on the
circumstances, the subject matter and context. Also, the Court noted that when there is no
consensus within the member States of the Council of Europe on a topic, the margin of
appreciation will be wide, especially where the case raises sensitive moral or ethical issues.53
Since surrogacy falls into this category, the Court concluded that the States enjoy a wide margin
of appreciation regarding de decision whether or not authorize surrogacy, but also, whether or
not to recognize a legal parent-child relationship arising between a surrogate-born child and the
intended parents. Moreover, the Court continued the margin of appreciation analysis
considering the essential aspect of the identity of individuals at stake where the legal parent-
child relationship is concerned.54 It concluded that in these cases the margin of appreciation has
to be reduced.55 In this sense, the Court carried out its assessment of the alleged violation of
Article 8 by separately examining the right to family life and the right to private life.
On one hand, the Court found no violation of the applicant’s right to family life, admitting
that the refusal to legally recognize the parent-child relationships at issues interfered with the
applicant’s right but was a lawful and pursued a legitimate aim.56 After assessing and focusing
on their practical day to day life, the Court considered that the impact of this measure on their
lives was minimal since according to French law, the parents were recognized as having full
parental responsibility for the children on the basis of the US civil status.57
On the other hand, the Court found a violation of the children’s right to respect for private
life. Focusing on the children’s right to their personal identity, an aspect of the right to respect
for private life, the Court noted that even though the parent-child relationship was recognized,
the refusal to grant effect to the US judgment and to record the details of the birth certificate
accordingly created a contradiction which undermines the children’s identity within the French
society.58 The Court observed that the resulting uncertainty as to whether the children would
acquire French nationality was liable to have negative repercussions for the definition of their
personal identity.59 The Court acknowledged that while there is no right to acquire a particular
nationality, nationality is an element of a person’s identity. The Court accepted the French
policy of deterring citizens from going abroad to take advantage of methods of assisted
reproduction that are prohibited on its own territory, but said that the effects of these are not
limited to the parent alone, but also affect the children themselves and their right to establish
the substance of their identity including the legal parent-child relationship. This aspect raised a
serious question as to whether this measure is compatible with the protection of the child’s best
interest 60 and in order to answer it, the Court conducted an analysis that took on a special
51
Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para. 75-86
52
Ibid, para. 77
53
Ibid, para. 78
54
Ibid, para. 81
55
Ibid
56
Ibid, para. 61
57
Ibid, para. 96
58
Ibid
59
Ibid, para. 97
60
Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para. 99
14dimension, where one of the parent was the biological parent. In regard to this, the Court said:
“It cannot be said to be in the interest of the child to deprive him or her of a legal relationship
of this nature where the biological reality of the relationship has been established and the child
and parent concerned demand full recognition thereof”.61 The significance of this case in the
field of surrogacy cannot be doubted. Although the Court acknowledged that the member states
enjoy a wide margin of appreciation as to whether to permit surrogacy on their territory, it gave
precedence to the biological truth, which raised the possibility that the States could be
compelled by the Convention to respect and recognize the result of cross-border surrogacy
arrangements, even if that profoundly contradict the domestic prohibition.
In another case, the case of Labasse v. France,62 where the circumstances were similar,
the Court with same reasoning found that having regard to child’s interests, the Article 8 rights
of the child had been infringed.
According to these cases, Article 8 of the Convention requires from domestic law to
provide a possibility of recognition of the legal relationship between a child born through a
surrogacy arrangement abroad and the intended father if he is the biological father. It is clear
that the Court placed some emphasis in its case-law on the existence of a biological link with
at least one of the intended parents. In the Court’s eyes, as it expressed in the Mennesson case,
a lack of recognition entails a violation of the child’s right to respect for his or her private life.
The Court assessed the margin of appreciation both in favor of narrowing it and widening
it. It recognized that the lack of consensus and sensitive ethical nature of the case offered France
a wide latitude but the circumstances of case implicated a crucial issue, the development of the
children personal identity, which narrowed the margin of appreciation.63 The Court rendered its
judgment by focusing on the Member State’s responsibility in such cases, rather than passing
judgment on the underlying substantive right.64 In other words, considering the wide margin
of appreciation that France enjoyed, the Court ruled that France can prohibit domestic
surrogacy, but by failing to provide a process by which the children can establish their identities
France violated the children’s right to private life.
3.2 Paradiso and Campanelli v. Italy- No genetic link
In the Paradiso65 case, an Italian couple, entered into a surrogacy arrangement in Russia.
The child born through this arrangement was allegedly biologically linked to the applicant, the
intended father. Under Russian law, the applicant were registered as the child’s parents, the
surrogate mother gave her written consent to the registration. After arriving to Italy, with travel
documents issued by the Italian Consulate is Moscow, the applicant requested the registration
of the birth certificate in Italy after which criminal proceedings were launched against them on
the grounds of “altering civil status”. The intended parents held that they entered into the
arrangement on the basis that the intended husband’s sperm would be used along a donated egg,
61
Ibid, para. 100
62
Case of Labasee v. France, Application. No. 65941/11, 26 June 2014
63
Clare Ryan, ’Europe’s Moral Margin: Parental Aspirations and the European Court of Human
Rights’, Columbia Journal of Transnational Law, Vol. 56, 2018, pg 46
64
Ibid.
65
Case of Paradiso and Campanelli v. Italy, Application No. 25358/12, 24 January 2017
15and accepted that the intended mother had never expected to have a genetic relationship to the
child.
The main difference between this case and the case of Mennesson can be found in the
Court’s view of the importance of the right to identity, and the influence this right has on the
margin of appreciation. Also, adoption procedures were instituted and the Court requested a
DNA test. The test showed that there was no genetic link between the applicant and the child,
meaning the child had no genetic relationship to either intended parent. Childcare proceeding
were initiated and the child was removed from the applicants and was placed in a children’s
home. The applicants were not allowed to have any form of contact with him. The applicants
turned to the Court for the violation of Article 8 of the Convention alleging that the refusal of
the Italian authorities to register the Russian birth certificates and the domestic court’s decision
to remove the child infringed their right to respect their private and family life.
Before taking a look at the Court’s decision in this case another important distinction
between this case and the case of Mennesson has to be drawn. In the Paradiso case the child
was not considered to an applicant in this case that is because the Second Chamber considered
that the intended parents had no standing to assert the right of the child before the Court since
their legal relationship was not recognized by the Italian courts. As a consequence, the
applicants did not had the possibility to challenge any of the State’s actions regarding the child’s
interest.66 The Second Chamber found that Article 8 is applicable, it noted that family life did
exist between the child and the intended parent despite the fact that the time they spent together
was a relatively short one and despite the absence of a genetic link. When assessing the balance
between the competing public and private interest involved and the legitimacy of the State’s
actions, the Court emphasized again the importance of the child’s best interest principle. 67 The
Court concluded that Italian authorities failed to strike a fair balance between the competing
interest and for that reason there has been a violation of Article 8 of the Convention. In a joint
partly dissenting opinion, Judge Raimondi and Spano criticized the majority’s conclusion that
there has been a violation of Article 8. They were not satisfied with the majority’s findings that
Article 8 of the Convention is applicable, 68 and they noted that the consequences of this
judgment amount to denying the “legitimacy of the State’s choice not to recognize gestational
surrogacy”69.They pointed out that the State’s freedom not to offer legal effect to gestational
surrogacy has already been acknowledged by the ECtHR in the case of Mennesson v. France
and Labasse v. France70 and this new judgment would leave the case-law without effect.
The case was later referred to the Grand Chamber which rendered a substantially different
judgment. Right from the start, the Grand Chamber noted that the case of Paradiso is different
from the case of Mennesson, because the issue in question is one about the actions taken by the
Italian authorities in separating the child from the applicants while in the Mennesson case, the
discussion revolved around the legal parent—child relationship. In regards to the existence of
the “family life”, the Grand Chamber based on the absence of a genetic link, the short period
66
Andrea Mulligan, ‘Identity Rights and Sensitive Ethical Questions: The European
Convention on Human Rights and the Regulation of Surrogacy Arrangements’, Medical Law
Review, Vol. 0, No.0, pp. 1-27, pg. 17
67
Case of Mennesson v. France, no 65192/11, para 81, Labassee v. France, no 65941/11, para
60
68
Ibid, para. 2
69
Ibid, para. 15
70
Ibid, para. 15
16of time that the applicants spent with the child and the uncertainty of ties from a legal
perspective made the Court to conclude that conditions for a de facto family life have not been
met. 71 On the other hand, the Court considered that the impugned measures affected the
applicant’s private life and therefore, the right to respect for private life protected under Article
8 was implicated. In contrast to Second Chamber, the Court assessed in details the aspect of the
adoption, the taking of the child and it pointed out, by citing the case of Mennesson, that in
cases where donor gametes and the recognition of legal relationships between parent and
children born through surrogacy arrangements are in place the States enjoy a wide margin of
appreciation. The Court observed that the present case touched on ethically sensitive issues
such as “adoption, the taking of a child into care, medically assisted reproduction and surrogate
motherhood” meaning that Italy enjoyed a wide margin of appreciation. The Court noted that
unlike the Mennesson case, the issue of the child’s identity and the recognition of a genetic link
did not arise in the Paradiso case. 72 Also, in contrast with the Mennesson case, the Court
observed that the applicants had no standing in arguing on behalf of the child that the state
failed to provide him with an identity nor did they had any biological link with the child.73 By
approaching the margin of appreciation in this way, the Grand Chamber clearly repositioned
this case as a case about surrogacy and assisted reproduction instead of State care, offering the
State a wide-margin of appreciation like in the case of S.H. and Others v. Austria.74
In light of these, the Court began its proportionality analysis. On one hand, while
considering the public interest, the Court accepted that the Italian Government’s actions
responded to the need to maintain the prohibition of surrogacy arrangements under Italian law,
and to put an end to an illegal situation.75On the other hand, as regards to the private interest,
the Grand Chamber reaffirmed again that the child was not an applicant is the case. In addition,
it also noted that the child was not a member of the applicant’s family in the light of Article 8
of the Convention. With other words, the private interest at stake was the intended parents’
interest in continuing the relationship with the child.76 In conclusion, the Court decided that the
Italian courts struck a fair balance between the different interests at stake, pointing out that the
authorities had assessed that the child would not suffer irreparable damages from the
separation.77 In its conclusion, the Court noted that had the Italian courts agreed to the let the
child stay with the intended parents, letting them become his adoptive parents: “would have
been tantamount to legalizing the situation created by them in breach of important rules of
Italian law”.78 This last remark recalls the joint dissenting opinion of Judge Raimondi and Span
in the Second Chamber, which drew attention to the risk of the Court’s judgment having the
effect of denying the Member States the right to prohibit surrogacy arrangements on their
territory.79
71
Ibid, para. 157
72
Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para 195
73
Ibid, para. 195
74
Andrea Mulligan, ‘Identity Rights and Sensitive Ethical Questions: The European
Convention on Human Rights and the Regulation of Surrogacy Arrangements’, Medical Law
Review, Vol. 0, No.0, pp. 1-27, pg. 19
75
Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para 204
76
Ibid, para.207
77
Ibid, para.215
78
Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para. 215
79
Andrea Mulligan, ‘Identity Rights and Sensitive Ethical Questions: The European
Convention on Human Rights and the Regulation of Surrogacy Arrangements’, Medical Law
Review, Vol. 0, No.0, pp. 1-27, pg. 19
173.3 C and E v. France- New way forward?
After the Mennesson v. France and Labasse v. France cases, where the paternal link was
established, the ECtHR was requested to rule on the establishment of maternal filiation in
regards to the transcription of birth certificates indicating the intended mother as being the
mother of the children and not the surrogate mother who gave birth to them.
In these two new cases, case of C and E v. France,80 the applicants demand aimed at the
recognition of a filiation link between the children and each member of the couple who resorted
to surrogacy. The Court declared the applications inadmissible as being manifestly ill-founded.
In the case of couple C, a French couple went through a surrogacy arrangement in the US. The
child has been conceived using the gametes of Mr. C and a third-party donor. The birth
certificate, issues in Florida named the applicants as the child’s parents. After a few years, in
2014 the couple requested that the child’s birth certificate be entered in the register of births,
marriages and deaths at the French consulate in Miami. Their request was forwarded to the
Nantes public prosecutor’s office after which they were informed that it had been refused. They
brought proceedings against the public prosecutor in the Nantes Tribunal, asking for the
particulars of the child’s birth certificate to be entered in the register of births, marriages and
deaths. They based their claim on Article 8 and 14 of the European Convention on Human
Rights. The Tribunal granted their request but the Court of Appeal upheld the judgment partly,
granting the request for registration with regard to the legal-father relationship. In regards with
the mother, the Court of Appeal quashed the judgment on the grounds that the child was born
through a gestational surrogacy arrangement and Mrs. C did not give birth to the child.81 The
principal facts in the case of the other couple, couple E, were similar.
In its decision, the Court noted that, on 10 April 2019,82 in response to the request for an
advisory opinion made by the French Court of Cassation, the Court delivered its opinion on
issues concerning situations where children had been born abroad through surrogacy
arrangements, having been conceived using the gametes of the intended father and a third-party
donor, and where the legal parent-child relationship with the intended father has been
recognized in domestic law. The Court observed that in the present case the children were in
the same position. It also noted that under domestic law the intended mother has the possibility
to have a recognized parent-child relationship by adopting the other spouse’s child. Although
the Court referred to its advisory opinion where it specified that an effective mechanism should
exist to recognize the relationship between the child and the intended mother, at the last when,
according to the assessment of the circumstances of each case, the relationship between them
had become a practical reality83, in regards to the present case, it considered that the initiation
of the adoption proceedings would not place an excessive burden on the children. The Court
based its arguments partly on the information provided by the Government that the average
waiting time for a decision was only 4.1 months in the case of full adoption and 4.7 months for
simple adoptions.84 In light of these , the Court concluded that the French authorities refusal to
register the details of the birth certificate in the French register of births, marriages and deaths
80
Case of C and E v. France, Application No. 1462/18 and 17348/18
81
Ibid, para. 3-20
82
https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-6380685-8364782%22]}
83
Advisory opinion concerning the recognition in domestic law of a legal parent-child
relationship between a child born through a gestational surrogacy arrangement abroad and the
intended mother, European Court of Human Rights, Grand Chamber, 10 April 2019, para. 54
84
Case of C and E v. France, Application No. 1462/18 and 17348/18, para. 43
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