Genetics III: The European Court of Human Rights discusses surrogacy… kind of

20 September 2015

Debra Wilson

None of these judgments rules on the question of prohibiting or authorising surrogacy arrangements.” In the past year, the European Court of Human Rights has delivered judgments in three cases involving surrogacy arrangements, while at the same time being very clear that it is not passing judgment on the practice of surrogacy itself. Instead, it has focussed on issues relating to guardianship, parent-child relationships not recognised under law, and the separation of a child from his family. All in contexts that happen to have surrogacy as part of the background facts. 

The European Court’s hesitation in considering surrogacy per se is understandable. Its member states take very differing views on whether it should be permitted or prohibited: 14 member states expressly prohibit surrogacy, 10 prohibit it under general provisions, 7 expressly authorise it and 4 tolerate it. Since the Court has thus far been asked to consider surrogacy as part of an application for a breach of the right to family life under Article 8 European Convention on Human Rights, the Court has felt more comfortable focussing on the specific claimed breach and not the fact of the surrogacy.

Is this an unrealistic approach? Yes, says the European Centre for Law and Justice (who in fact provided a third party submission in one of the cases). In fact, in its opinion, the Court ‘is progressively legitimising surrogacy by a rapid succession of decisions each carrying further the liberalisation of this practice and the logic of the right to a child’.

So what have the cases been about? The first was Mennesson and Labassee, in which the Court accepted that the Article 8 rights of the Mennesson twins and Juliette Labassee (born to US surrogates in 2000 and 2001) had been breached by the French Government’s refusal to enter their US birth certificates on the French register (making them French citizens and recognising their intended parents as their legal parents).

The second was D v Belgium, a claim by the intended parents of D that the Belgian Government’s refusal to issue travel documents enabling D to be brought back to Belgium after his birth to a surrogate in the Ukraine was a breach of Article 8 as it resulted in a separation of D from his intended parents, who needed to return to Belgium. The claim failed on the facts: the separation was short, and the intended parents were largely responsible due to their failure to supply required documentation in a timely manner.

The third was Paradiso. In this case, an Italian couple claimed a breach of their Article 8 rights following the Italian Government’s removal of their surrogate-born child from their home. The boy was placed in foster care and later adopted. The claim succeeded, but the compensation awarded was monetary only: it was considered to be in the best interests of the boy, who had been living under a new name for two of his four years, to remain with his new family.

Can the European Court continue to discuss surrogacy cases without actually discussing surrogacy? This will be interesting to find out, since it has agreed to hear three more such cases this year, plus an appeal to the Grand Chamber in the Paradiso case.

Does the European Court have an opinion on the importance of a genetic link between parents and child(ren)? Again, we might need to wait for the next cases to decide this. In Mennesson, this is a key element of the decision. The Court comments that determining legal parentage ‘takes on a special dimension where… one of the intended parents is also the child’s biological parent’ and the President of the Court later remarks that ‘everyone must be able to establish the substance of his or her identity, and in particular the legal parent-child relationship with a genetic parent’. The next two cases, however, appear less certain. In D v Belgium it was sufficient that the applicants acted ‘like parents’. The Paradiso case is directly on point: unlike the other two cases there was no biological link present (due to a lab mistake). The majority considered that ‘the State must take into account the best interests of the child, irrespective of the parental relationship, genetic or otherwise’.