A search for consistency in ECtHR decisions on the recognition of parenthood following surrogacy

Abstract

The European Court of Human Rights (ECtHR) has developed a body of case law relating to the legal recognition of the parent-child relationship following surrogacy. Although the Article 8 right to respect for family and private life is invoked when a State fails to give effect to the relationship between an intended parent and surrogate-born child, it is not necessarily the case that this will amount to a violation of the right. This paper thematically considers the approach of the ECtHR, with a central focus on the existence of a genetic tie between the child and one, both, or neither intended parent. In examining the approach of the court in each situation, significant inconsistencies in the judicial reasoning become apparent. These inconsistencies include a gendered distinction relating to the genetic link, the precarious nature of non-genetic intended parents’ claims for parenthood, and the contradictory range of accepted restrictions on methods to establish parenthood, such as via adoption. To overcome these inconsistencies, this paper argues that the ECtHR should extend the approach currently adopted to genetic fathers, by requiring States to recognize legal parenthood that has been validly established in the child’s country of birth.

I. Introduction

Surrogacy is a reproductive arrangement in which an individual (the surrogate) agrees to carry and give birth to a child on behalf of another individual or couple (the intended parents), with the intention for the intended parents to be the child’s legal and social parents from birth. As surrogacy becomes increasingly common, particularly with intended parents seeking arrangements in foreign jurisdictions, the European Court of Human Rights (ECtHR) has developed a body of case law addressing the obligation on States to provide legal recognition of parenthood for surrogate-born children in the intended parents’ home country.

The European Convention on Human Rights (ECHR) is a living instrument, meaning its interpretation must evolve in response to contemporary conditions and common standards across Member States of the Council of Europe. However, there is no unified position among contracting States regarding the acceptability or desirability of surrogacy: there are a diverse range of legal responses to the practice, ranging from permissive models¹ to prohibitions,² and even attempts to make the practice a universal crime.³ As such, despite the growing number of surrogacy cases brought before the ECtHR, its rulings do not fully reflect the diverse legal and ethical approaches to surrogacy across Member States. Reviewing the judgments and seeing the approach of the ECtHR as often demanding recognition, at least in relation to the genetic father, might imply that surrogacy is widely accepted as a legitimate means of reproduction. This is surprising given the lack of consensus as to how best to regulate surrogacy across Member States. However, the reasoning behind these judgments is rooted in a primarily child-centric approach. Rather than endorsing surrogacy itself, the ECtHR has emphasized that once a child has been born, their best interests and right to respect for private life must be prioritized. This approach has led to rulings that require recognition of de facto family ties, even in jurisdictions where the legal framework does not support surrogacy or the circumstances of the child’s birth.

The Convention right that has been the focus of the ECtHR when making determinations following surrogacy is Article 8, the right to respect for private and family life. In circumstances where the surrogate-born child is living with the intended parents, it will usually be the case that family life is found to exist. However, the mere existence of family life does not automatically require legal recognition of the parent–child relationship, as family life can be maintained through alternative legal and practical means. Consequently, the ECtHR’s reasoning has been largely driven by the emerging concept of private life, albeit to varying degrees, as will be examined later in this article.

The first time the ECtHR had to consider recognition of the parent–child relationship following surrogacy was in the combined case of Mennesson v France⁴ and Labassee v France in 2014.⁵ The case was significant in establishing minimum standards in relation to recognition, obliging Member States to acknowledge the relationship between a genetic intended father and surrogate-born child based on the child’s right to respect for private life under Article 8, even where the State in question seeks to prohibit surrogacy as a practice.

Since the 2014 decision, there have been numerous other cases that have reached the ECtHR, requiring the court to consider the extent to which the Article 8 right of surrogate-born children, and the intended parents, can demand legal recognition of the parent–child relationship. At the 10-year mark since the Mennesson decision, this article critically reflects on a decade of developing jurisprudence of the ECtHR. Although individual cases have been the subject of academic critique,⁶ this article takes a thematic approach, analysing the case law as a whole to provide a comprehensive understanding of the ECtHR's stance on parenthood following surrogacy. The Court has considered the extent of a State’s obligation to recognize the parent–child relationship in various contexts, including cases where neither intended parent is genetically related to the child and where the intended mother is also a genetic parent. This article thematizes the cases based on the nature of the genetic link (or lack thereof) of the intended parents, before reflecting on whether, in light of this thematic characterization of the case law, the decisions can be deemed as consistent. This analysis is original and doctrinally rigorous, looking across the full range of relevant case law to demonstrate a complete understanding of the approach of the ECtHR. In Section II, this article considers four categories of cases dependent upon the status of the person seeking parental recognition: genetic intended fathers, non-genetic second intended parents, genetic intended mothers, and intended parents who have no genetic link to the child. Figure 1 shows the ECtHR cases that fall within each category.

Having established that the ECtHR adopts differing approaches depending on the category of case, Section III identifies three key inconsistencies in its decisions: a gendered distinction relating to genetic relatedness, the precarious and contingent status of non-genetic intended parents, and the erratic degree to which restrictions are permitted in relation to establishing parenthood, primarily via adoption. Given these significant inconsistencies, this article presents an original analysis illustrating that the ECtHR must adopt an approach that ensures greater certainty, transparency, and consistency as to the recognition of the parent–child relationship in future rulings. This article argues that the most effective way to achieve this is by a standardized approach of requiring recognition of legal parenthood when it has been validly established in the child’s country of birth.

II. The ECtHR case law

1. Genetic intended fathers

The first case to consider Article 8 in the context of surrogacy was Mennesson v France.⁷  Labassee v France, heard concurrently with Mennesson, had similar material facts and the outcomes of the judgments were the same.⁸ The cases concerned the refusal of the French authorities to recognize, and register, the genetic intended fathers as the legal parent of the surrogate-born children, despite this parenthood having been validly established in California following the birth of the children. The refusal to recognize the US birth certificates was due to it being contrary to French public policy. The cases therefore highlight the inherent conflict between prohibitive legislation aimed at deterring surrogacy and the rights of the individuals involved where surrogacy has taken place, and which leads to the relationship between the intended parents and child requiring recognition.

There was no dispute between the parties that the refusal to legally recognize the relationship did interfere with the Article 8 rights of the intended parents and children. The question for the ECtHR was whether such an interference was justified. The Grand Chamber acknowledged there was a lack of consensus across Member States as to the practice of surrogacy resulting in States being afforded a wide margin of appreciation.⁹ However, it found that the margin needed to be reduced where the issue was ‘an essential aspect of the identity of the individuals’.¹⁰ Although the interference with Article 8 was recognized as being in accordance with the law and pursuing a legitimate aim (to deter the practice of surrogacy, deemed contrary to public policy), the issue of whether the interference was necessary for a democratic society was considered in detail, drawing a distinction between the notions of family and private life.

In relation to family life, it was held that a fair balance had been struck between the interests of the applicants—the intended parents and children—and the State, because many of the practical difficulties in the non-recognition of parenthood could be overcome, thus meaning they were not prevented from living together and establishing family life.¹¹ Fenton-Glynn describes the courts as having taken a ‘broad-brush approach’ to the intended parents alleged breach of family life, focusing on their ability to live as a family even with the child’s precarious legal position.¹²

However, it was stated that non-recognition of the relationship affected the private life of the children, because an implicit aspect of private life is the ability:

to establish the substance of his or her identity, including the legal parent-child relationship… Accordingly, a serious question arises as to the compatibility of that situation with the children’s best interests, respect for which must guide any decision in their regard.¹³

As Mulligan asserts, the judgment was based on the ‘intangible, philosophical consequences of non-recognition for the child’ as opposed to the practical consequences, such as inability to obtain passports, consent to medical treatment and inheritance.¹⁴

The judgment fed into the ‘traditional narrative’ of giving primacy to genetic ties and filiation due to the reference to the ‘special dimension’¹⁵ that arose due to the intended father being genetically related to the child.¹⁶ It was stated that:

it cannot be said to be in the interests of the child to deprive him or her of a legal relationship of this nature where the biological reality of that relationship has been established and the child and parent concerned demand full recognition thereof.¹⁷

As such, the court held that France had exceeded the margin of appreciation in failing to legally recognize the relationship between the genetic intended father and the children. Significantly, the judgment was decided based on the children’s Article 8 rights as opposed to the intended parents’, focusing on the identity aspect of private life, rather than ensuring recognition of the family unit. As stated by the court, this accords with the ‘essential principle’ of the best interests of the child being paramount.¹⁸ According to Achmad, the ‘unambiguous, child-centred approach’ of the judgment ‘planted a stake in the ground’ that surrogate-born children’s rights should be of central importance when making decisions.¹⁹

The clear assertion that the genetic relationship between the intended father and child requires recognition in order to comply with Article 8 lends support to Fenton-Glynn’s categorization of the case as a ‘watershed moment’ in relation to international surrogacy, with the effect being that where there is a genetic link with one of the intended parents (with later cases confirming this must relate to a genetic father), recognition of the relationship is required, thus meaning ‘denial of status can no longer be used as a deterrent against the use of international surrogacy arrangements’.²⁰

Similar violations of the Article 8 right to private life were found in the later cases of Foulon & Bouvet v France,²¹ and Laborie v France,²² with the ECtHR focusing on the importance of the genetic link between the child and the intended father and how that relates to the child’s identity.²³ In Foulon & Bouvet,²⁴ the intended male parents were trying to establish legal parenthood as single applicants and, as Shúilleabháin states, one may have expected an evaluation by the ECtHR of this factual difference with Mennesson, which involved a couple: despite this, the judgment was ‘extremely brief’, instead merely emphasizing that the factual circumstances were similar to those in Mennesson.²⁵ The fact that the ECtHR did not find it necessary to consider the impact of single applicants demonstrates that the marital status of the intended father, where there is a genetic link, is not a distinguishing factor in establishing a legal relationship between the parent and child.

More recently, C v Italy similarly found a breach of the child’s right to private life resulting from the State’s failure to recognize the genetic intended father as the legal father.²⁶ In finding that legal recognition of the relationship needs to be prompt and effective, it was stated that the child was left in a ‘state of prolonged uncertainty as to her personal identity’ owing to the lengthy judicial proceedings of four years.²⁷ The case therefore confirms that legal recognition of the relationship between the genetic father and child must take place promptly and without excessive formalities.²⁸

The effect of these decisions, as stated by Pascoe, is that legal recognition must be given to the relationship between child and genetic father ‘in circumstances where the receiving state has no, or very little, ability to control the circumstances leading to the child’s conception and birth’.²⁹

This category of case therefore demonstrates that, given that the obligation to give effect to the father-child relationship is embedded in the ECtHR jurisprudence, and whilst cross-border arrangements are likely to continue to grow in number, an absolute prohibition on surrogacy is ineffective.

2. Non-genetic second parents: contingent claims

Mennesson only considered recognition of the relationship between the child and genetic intended father, failing to consider the relationship with the second intended parent. Despite an earlier assertion that it would be incongruous to read the judgment in such a way, the ECtHR placing emphasis on the genetic aspect of parenthood risks ‘asymmetry in the paternal statuses’ of a genetic father and second intended parent.³⁰ Subsequent cases that have considered the relationship between a surrogate-born child and non-genetic intended parent, where one intended parent does have a genetic link, confirm the existence of this asymmetry.

The Grand Chamber Advisory Opinion examined whether, and in what manner, the relationship between the non-genetic intended mother and the child in a surrogacy arrangement should be legally recognized.³¹ It was stated that the:

general and absolute impossibility of obtaining recognition… is incompatible with the child’s best interests, which require at a minimum that each situation be examined in light of the particular circumstances of the case.³²

Therefore, under Article 8, there must be the possibility for legal recognition of the relationship between the child and the non-genetic intended mother which has been designated on a birth certificate from another jurisdiction.³³ As Bracken has argued, the same principles should apply in relation to non-genetic intended fathers in a same-sex relationship, since they are directly comparable to the intended mother in the Advisory Opinion.³⁴ The later case of DB v Switzerland confirmed this position,³⁵ meaning that a State cannot refuse to provide a method for legal recognition of a non-genetic intended father in a same-sex relationship. It was held that the inability for the relationship between the non-genetic intended father and child to be recognized, owing to adoption being unavailable to same-sex couples, was contrary to the child’s best interests and a disproportionate interference with the child’s right to respect for private life.

However, as to how the relationship between a non-genetic intended parent and child should be recognized, and whether methods such as adoption would be sufficient, it was opined in the Advisory Opinion that the means by which recognition is given is within the State’s margin of appreciation.³⁶ The child’s best interests, in having the relationship legally recognized, can be served in ways other than recognizing a foreign birth certificate, including, for example, effective and timely adoption proceedings.³⁷ Subsequent cases, C and E v France³⁸ and C v Italy,³⁹ found adoption proceedings to be an appropriate method of recognition. By stating that the method and criteria for providing recognition fall within the margin of appreciation, it implies that, unlike the situation for a genetic intended father—whose relationship must be recognized from the outset—there remains the possibility for recognition of the relationship between the child and a non-genetic intended parent to be denied.

In KK v Denmark, the ‘other means’ alluded to in the Advisory Opinion were considered, in circumstances where a non-genetic intended mother was unable to undergo step-parent adoption due to prohibited payments being made to the surrogate.⁴⁰ It was held that the inability for the intended mother to adopt the children did amount to an interference with the children’s private life, due to the ‘position of legal uncertainty regarding their identity within society’ and thus there had been a breach of Article 8.⁴¹ The dissenting judges were critical of the this approach, taking the view that the majority had effectively substituted their own view as to what the best method of recognition would have been.⁴² Indeed, this judgment does appear to be another step in making any attempt to prohibit surrogacy ineffective; unlike France in the Advisory Opinion, in Denmark, adoption proceedings were possible but the intended mother was ineligible resulting from the payments that had been made.⁴³ Despite this, the ECtHR held that the availability of adoption was not in itself sufficient unless the requirements for that adoption order to be granted enabled effective realization of the parent–child relationship.

The effect of these decisions is that a State must facilitate a non-genetic intended parent, irrespective of gender, being recognized as a legal parent to guarantee the child’s right to respect for private life under Article 8. This is the case regardless of the overarching societal views driving the legislative approach. Bracken raises concerns over the impact that this could have on the ability for domestic courts to make individualized best interests assessments: if the State has undertaken a best interests assessment and concluded that adoption would not be in the child’s best interests, and yet the ECtHR jurisprudence requires an adoption order to be granted to provide legal recognition of the relationship, the best interests assessment has the potential to become meaningless.⁴⁴ However, in such cases, it is likely that an adoption order would be in the best interests of the child and the approach is also supportive of the child’s rights, in recognizing the importance of the relationship between the child and non-genetic parent.

The Advisory Opinion acknowledging that a child has the right to have their relationship with a non-genetic intended mother recognized in accordance with their right to respect for private life ‘has far-reaching consequences for all families and emphasizes the need to recognize caring roles, rather than relying solely on genetics as the marker of legal parentage’.⁴⁵ Statistics from England and Wales show that intended fathers are more likely to be the genetic parent,⁴⁶ thus meaning the intended parent who lacks a genetic link to the child is often the mother, who traditionally would be more likely to perform the majority of the caring role. The Advisory Opinion therefore demonstrates the court moving ‘beyond the traditional biological/gestational understanding of motherhood and acknowledges the provision of care as another relevant dimension of “being a mother”’.⁴⁷

However, ‘the privileged role conferred on biology’ is still clear in the Advisory Opinion because the method of recognition for a non-genetic intended parent is not specific; adoption is deemed to be an appropriate method for recognition, something that is not required for the intended genetic father (and which may be procedurally unavailable to the non-genetic intended mother).⁴⁸ Further, the requirement to recognize the relationship is not absolute as is the case for the intended genetic father. Recognition of the relationship is only required once the relationship has become a practical reality; it therefore remains within the State’s margin of appreciation to assess that relationship and determine whether, in light of that, the child’s best interests requires formal recognition of the relationship.

However, these cases also demonstrate that the non-genetic intended parent is dependent upon their relationship with the genetic father in order to establish legal parenthood, because the cases arise in circumstances where the genetic father’s legal status had already established. The contingent status of non-genetic intended parents on the genetic father can be interrogated further in light of AM v Norway,⁴⁹ which highlights the limits of the reasoning and application in the Advisory Opinion. In this case, the genetic intended father had sole parental responsibility for the child because he was the only legally recognized parent in Norway, the other legal parent being the surrogate in the US. The non-genetic intended mother was unable to be registered on the birth certificate due to the Norwegian restrictions on recognizing parenthood following surrogacy and could therefore only establish legal parenthood by way of adoption. The father refused to consent to the adoption order because of a relationship breakdown. The intended mother’s claim was that the inability to be recognized as the child’s legal parent was a breach of Article 8. Finding that the applicant’s private life had been interfered with, the ECtHR nonetheless held that the interference was pursuant to a legitimate aim and within the margin of appreciation. Applying the reasoning of the Advisory Opinion, there was a method of recognition possible—that of adoption. The fact that the father was refusing consent was not a State interference, and the requirement of consent for adoption was not disputed by the ECtHR.⁵⁰ Resultantly, the inability to obtain legal recognition as the surrogate-born child’s parent because of the genetic intended father’s refusal to consent to the adoption order was not a breach of Article 8.

Of significance, the ECtHR were limited to consideration of the applicant’s rights only, rather than also being able to consider the rights of the child, because the intended mother had no standing to bring the case on behalf of the child. As highlighted in the concurring judgment, this constrained the court in terms of its consideration because the ‘“living instrument” responds better and more progressively’ when children’s rights are involved.⁵¹ Had the court been able to consider the case from a child’s rights perspective, as many of the aforementioned cases had, the judgment may have been less rigid, because the child’s right to respect for private life, including their identity, could have been assessed.

AM demonstrates the precarity of a non-genetic intended parent’s position being contingent upon their relationship with the genetic father. Their ability to make a claim for legal parenthood is conditional upon their relationship with the genetic father, in that they need to be able to rely upon the consent of genetic intended father, who can be assured of legal recognition of their relationship following Mennesson. Whilst adoption proceedings were possible in AM—and therefore would have met the standard advocated in the Advisory Opinion—without the father’s consent, she had no way to obtain recognition of the relationship with the child. As Judge O’Leary acknowledged, it is:

not too hard to conclude… that the journey is particularly precarious for non-biological parents and even genetic (not gestational) mothers in relation to whom the law has not kept apace either of social reality or of science.⁵²

3. Genetic intended mothers

As Mulligan stated prior to the Advisory Opinion, given the emphasis on the right to establish an identity and the importance of biological and genetic truth as the reason for narrowing the margin of appreciation in Mennesson, the same approach should be applied to genetic intended mothers.⁵³ Despite the Advisory Opinion being explicit in its remit covering only gestational surrogacy arrangements where a donor egg was used,⁵⁴ it was stated that in relation to a genetic intended mother, the need to recognize the legal relationship ‘applies with even greater force’.⁵⁵ What was not clear is what form recognition would take given the prevalence of the mater semper certa est (the mother is always certain) presumption across Europe.⁵⁶

This issue was examined in D v France in relation to France’s refusal to enter a foreign birth certificate listing the genetic intended mother as the legal mother on the French register whilst recognizing the allocation of the genetic intended father as the legal father.⁵⁷ The intended mother’s genetic link was not made apparent to domestic authorities or ECtHR until further questions were asked during proceedings, meaning the claim of discrimination under Article 14 was inadmissible.⁵⁸ Nonetheless, the genetic link was relevant in examining the child’s right to have their relationship with the intended mother recognized under Article 8. Although it was accepted that there had been an interference with the child’s private life, there was no breach because a method of recognition, by way of adoption, was available. It was stated that a genetic link between parent and child does not require recognition of parenthood specifically via registration of the foreign birth certificate,⁵⁹ and when the question is of how to establish filiation, as opposed to whether to establish such, the identity of the individual is ‘less at stake’.⁶⁰ Therefore, because there was a method to establish parenthood, the fact that this method differed between a genetic intended mother and genetic intended father did not matter.

Despite the importance of a genetic link being emphasized by the ECtHR,⁶¹ the intended mother being a genetic parent made no difference to the outcome, adopting the same stance as seen in the Advisory Opinion for non-genetic intended parents. This demonstrates that even where the intended mother is the genetic parent, automatic recognition is not required as it is for genetic intended fathers, despite the Advisory Opinion referring to genetic relatedness as meaning the need for recognition applied with ‘even greater force’.⁶²  D v France is the only ECtHR case to date that has considered legal recognition of the relationship between a genetic intended mother and child. The decision leads to questions as to the privilege given to the male genetic link over a female genetic link, and its alignment with the prevalent mater semper presumption. This is examined in more detail later in the article.

4. Non-genetic intended parents

The cases of Paradiso & Campanelli v Italy⁶³ and Valdis Fjölnisdóttir and others v Iceland⁶⁴ confirm that the approach taken in Mennesson is limited to where there is a genetic link between the child and the intended father, with no obligation for a State to recognize the parent–child relationship absent a genetic link with either intended parent. In Paradiso and Valdis, the intended parents engaged with cross-border surrogacy without a genetic link between the child and intended parent(s). In Valdis, the lack of genetic link arose due to the use of double gamete donation, whilst in Paradiso, there was a clinical error meaning that the intended parent’s gametes were not used as intended. Following the surrogacy births, the intended parents were unable to register themselves as the legal parent of the child in their home countries, and in Paradiso, State authorities removed the child from the intended parents’ care. März posited that there were particularities to the Paradiso case which meant that the judgment would not be transferable to future cases: legal parenthood in Russia (where the surrogacy arrangement had taken place) was contested, and the child was not a party to the case.⁶⁵ However, the subsequent Valdis case—notably lacking these two particularities—reached the same conclusion as in Paradiso, thus confirming the decisions were dictated by the complete lack of genetic link to either intended parent. Of importance in these judgments is how the court considered the separate concepts of family and private life in relation to the relationship between a surrogate-born child and intended parent.

It was held that there was no breach of the right to respect for family life within Article 8 in either case. In Paradiso, the Grand Chamber held that family life did not exist, owing to the lack of genetic link between the child and intended parents, the short duration of time the child was living with the intended parents before being removed from their care (a period of 8 months), and the uncertainty of the legal ties between the child and intended parents. The Grand Chamber distinguished D and others v Belgium,⁶⁶ whereby family life was held to have existed for two months prior to the removal of the surrogate-born child from the intended parents on the basis that there was a genetic link with the intended parent.⁶⁷ Therefore, the genetic link, or lack of in the present case, was a highly influential factor in finding that family life had not been established.

Contrastingly, in Valdis, owing to the fact that the intended parents had had uninterrupted care of the child since birth through foster arrangements,⁶⁸ the quality of the ties between the intended parents and the child, as well as the close emotional bonds between the applicants, the ECtHR found that family life did exist and had been interfered with.⁶⁹ Nonetheless, the interference was found to pursue the legitimate aim of protecting potential surrogates and children in accordance with the Icelandic ban on surrogacy, and struck a fair balance between the competing interests. The finding that there had been limited disruption of the applicant’s enjoyment of family life, supported by the measures taken by the authorities,⁷⁰ ignored the fact that the child effectively remained ‘de facto parentless’ (with the only legal parent recognized in Iceland being the surrogate in California), which may have implications for the child later in life.⁷¹

In relation to private life, in Paradiso, it was acknowledged to be a broader concept than family life, which would not exclude ‘the emotional bonds created and developed between an adult and a child in situations other than the classic situation of kinship’.⁷² However, despite finding that the right to respect for private life was engaged, it was held there had been no breach because the authorities’ actions was in accordance with the law and pursuant to a legitimate aim. It was held that the authorities had struck a fair balance between the private interests of the intended parents in their personal development through the relationship with the child and the wider public interests in maintaining the legal position in relation to surrogacy.⁷³

Although the ECtHR recognized in Paradiso that private life is a distinct and broader concept than family life, in Valdis it simply noted that the arguments for an alleged breach of private life were identical to those for family life, ultimately concluding that no breach had occurred.⁷⁴ The ECtHR's failure to address the specific impact on private life, rather than focusing solely on family life, is disappointing, especially given that Paradiso highlighted the connection between private life and the child’s identity.

Judge Lemmens’ concurring opinion in Valdis acknowledged that private life was distinct from family life, particularly in a surrogacy context where private life is more likely to concern the recognition of the legal relationship between intended parents and child.⁷⁵ The impact of recognizing such a relationship (or not) applies to all children born through surrogacy:

Indeed, for the children the impact is the same, whether or not one or both of their intended parents has a biological link with them. In both situations, I wonder whether the legal limbo in which a child finds itself can be justified on the basis of the conduct of its intended parents or with reference to the moral views prevailing in society.⁷⁶

Whilst ultimately agreeing with the majority that there was no reason to reach a different conclusion based on private life than family life, this concurring opinion does appear to leave the door open for future consideration of how legal recognition of the relationship with non-genetic intended parents may impact on the child’s private life. For the ECtHR to be willing to do so, however, it appears that the applicants will need to make the case separately to that of family life.

In Paradiso, due to the lack of a genetic link and because the child was not in the care of the intended parents, the intended parents had no legal standing to bring the case in the child’s name. This meant that the child was not an applicant in the case, and the decision was based on the intended parents’ Article 8 rights only. However, an earlier suggestion that the child being an applicant might have led to a different outcome in Paradiso has less merit following Valdis.⁷⁷ In Valdis, due to the non-recognition of the legal relationship between the child and the intended parents, the child was considered an unaccompanied minor in Iceland. Resultantly, the State took legal custody of him and appointed him a legal guardian. The legal guardian gave authority for the child to be an applicant to the case and to be represented by the intended parents’ legal counsel. This meant that the Article 8 rights of both intended parents and the child were justiciable by the ECtHR. Notwithstanding this, the outcome was ultimately the same as Paradiso; whilst finding evidence of family life, it was held that the interference was justified and within the State’s margin of appreciation, and the child’s private life was not considered. Therefore, even if the child had been an applicant in Paradiso, and evidence of family life had been found, it is likely that the decision would have ultimately been the same.

It is clear that the deciding distinction between the cases requiring recognition of the relationship between intended parent and child and Paradiso and Valdis was the genetic link (or lack of) between one intended parent and the child. These judgments appear to align with the ‘fully biologistic way’ in which identity has been interpreted by the ECtHR.⁷⁸ This calls into question the adequacy of the decisions from the perspective of the child’s rights: had the child in Valdis or Paradiso been genetically related to the intended parent it is likely that, as in Mennesson, the child’s identity, as an aspect of private life, would have necessitated legal recognition of the relationship. Shuilleabhain defines the privileging of biology in the Paradiso case as ‘questionable’, moving the court away from recognition of the importance of social parentage which was alluded to in Mennesson in relation to the non-genetic intended mother, and seen in the Advisory Opinion, and argues that this is an unfair approach from the child’s perspective.⁷⁹ This criticism carries even greater weight following Valdis.

III. Examining the inconsistencies

Having provided an overview of the approach of the ECtHR, dependent upon the category of case, it is possible to identify various inconsistencies in the decisions. Firstly, the cases demonstrate an inconsistent priority given to genetic relatedness, with a gendered distinction attributing greater importance to a male genetic link. Secondly, and relatedly, the contingent nature of non-genetic intended parents’ claims: whilst these cases seemingly support recognition of the parent–child relationship absent a genetic link, they in fact re-affirm the male genetic link priority and expose inconsistencies as to the ability for a non-genetic intended parent to obtain parental recognition. Thirdly, the decisions demonstrate inconsistency in how recognition can be given to a non-genetic second parent (or genetic intended mother), meaning their parental status is more precarious than that of a genetic intended father. Each of these inconsistencies are examined below.

1. Inconsistency No 1: gendered significance of genetic relatedness

Mennesson, and the subsequent cases demanding recognition of the parent–child relationship for genetic intended fathers, demonstrate the significance that the ECtHR attributes to the genetic relationship between parent and child. The ‘special dimension’ of the cases, owing to the genetic link with the intended father, necessitated recognition of legal parenthood by way of transcribing the foreign birth certificate on the national register. These decisions confirm that, from an Article 8 perspective, parenthood must be established to give effect to this genetic relationship, regardless of how the receiving State determines legal parenthood or attempts to regulate surrogacy as a practice. Obliging States to give legal effect to the relationship, even where that State may deem such an action to be contrary to public policy, is a strong assertion of the significance that the ECtHR attributes to genetic relatedness.

However, the same obligation of recognition does not apply where the genetic link is between the intended mother and child. In the Advisory Opinion, it was posited that the requirement to facilitate a method of recognition for intended mothers would ‘apply with particular force’ if the intended mother was also the genetic parent:⁸⁰ this again indicates that the ECtHR attributes particular weight to genetic relatedness by suggesting there is a stronger obligation on the State to facilitate recognition of the mother-child relationship where a genetic tie is present. Nonetheless, the Advisory Opinion concerned a non-genetic intended mother meaning this comment was strictly obiter dicta. When this issue came to be determined, in D v France, the ECtHR retreated from this stance, instead re-asserting the principle as for non-genetic intended parents that the method for recognition is within the State’s margin of appreciation. The refusal by the French authorities to transcribe the birth certificate, recognizing the genetic intended mother as the child’s legal mother, was not a breach of Article 8. On the facts, the genetic intended mother had the ability to obtain parental status by way of adoption, satisfying the ECtHR that a method of recognition was available.

Therefore, the ECtHR case law to date establishes that genetic intended fathers must be granted parental status through the transcription of the birth certificate, ensuring their recognition from the outset. In contrast, genetic intended mothers do not have an automatic right to recognition of the relationship, as it can be subject to domestic rules governing recognition methods, such as adoption restrictions. There is therefore a clear priority being given to genetic fathers over genetic mothers.

The rationale for this distinction may be the prevalence of the mater semper certa est presumption, applied in most Member States of the Council of Europe. The presumption that the person who gives birth to the child is the legal mother is an enshrined and ingrained concept and enabling genetic intended mothers to obtain parental status ab initio would be seen to undermine this presumption. Unlike for biological fathers, there are two potential grounds for asserting biological motherhood: genetics and gestation. It is clear that the latter is prioritized in the case law. However, reluctance to weaken the mater semper presumption alone cannot justify the inconsistent approach of the ECtHR to genetic relatedness, and its operation has the potential to operate contrary to the child’s rights. Should the method for recognition, such as adoption, not be available to the genetic intended mother (for example, due to a key eligibility criterion not being satisfied),⁸¹ she would not be able to establish legal parental status. The result is that the surrogate—who will not be regarded as the legal parent in her home country if the intended mother has been listed on the birth certificate—will be the child’s legal parent in the country where the child is living. Such an outcome cannot be in the child’s best interests, creating a disconnect between their lived reality and legal status, and potentially creating significant practical challenges including de facto statelessness.

The ECtHR should recognize the parental status as prescribed on a foreign birth certificate for genetic intended fathers and mothers equally. To do so would remedy the inconsistency currently evident, removing the gendered priority of the male genetic link. Such an approach would not in itself undermine the mater semper presumption, which would still apply to births that take place within the country, but would instead recognize that not all States do prescribe legal parental status to the person who gives birth, enabling an outcome that is consistent and better aligned with the Article 8 rights of the children and intended parents.

2. Inconsistency No 2: reliance by non-genetic intended parents

As previously outlined, non-genetic intended parents are dependent upon their relationship with the genetic intended father in order to obtain recognition of their parental status. As Margaria explained, ‘the “privilege” of recognition is extended to the intended mother not only as a result of her involvement in the children’s lives but also in her capacity as the wife of the biological father’.⁸² Decisions such as seen in the Advisory Opinion, C v Italy and C and E v France demonstrate that where the relationship between the child and genetic father has been given effect, there is an obligation on the State to provide a method of recognition for the non-genetic second intended parent. More recent cases have even considered how restrictions on the method of recognition, such as prohibition of payments in adoption, may interfere with Article 8, thus obliging States to depart from their policy stance to facilitate recognition of the relationship.⁸³ These cases therefore seem to be supportive of the parent–child relationship even absent a genetic link.

However, these cases contrast starkly with the approach taken by the ECtHR in Paradiso and Valdis when there is no intended parent with a genetic link. Whilst the Advisory Opinion made clear that some form of legal recognition must be given to the relationship between a non-genetic intended mother and the child, the complete lack of a genetic link in Paradiso and Valdis meant there had been no interference with Article 8. The distinction between these decisions is based on the relationship between the intended parents: in the Advisory Opinion, the ability for the intended mother to have her relationship with the child legally recognized was consequent to the father’s genetic link with the child. In contrast, in Paradiso and Valdis, there was no intended parent with a genetic link to the child for the other intended parent to rely upon.

The Advisory Opinion stated that Article 8 requires the ‘possibility of recognition of a legal parent–child relationship with the intended mother, designated in the birth certificate legally established abroad as the ‘legal mother’.⁸⁴ Whilst the Advisory Opinion applied only to the factual circumstances of the case (in circumstances where the intended father was genetically related to the child), the focus of the Advisory Opinion appears to be upon the recognition of the relationship as designated on a foreign birth certificate and how it would be in the best interests of the child to have that relationship recognized. This should apply with equal force irrespective of whether the other intended parent was genetically related to the child. Iliadou argued that it is unlikely the Advisory Opinion intended their statement in relation to recognition of the relationship based on the best interests of the child to be limited to cases where there is a genetic link with at least one intended parent.⁸⁵ In light of Paradiso and Valdis, however, this is the only coherent interpretation.

The dependency of a non-genetic intended parent upon their relationship with a genetic parent continues to prioritize the existence of a genetic link and ignores the reality that the non-genetic intended parent is likely to be as important to the child’s Article 8 private life and identity, regardless of the existence of that relationship.⁸⁶ Further, without the existence of a genetic link, the intended parents are unlikely to be able to establish legal parenthood. Therefore, the approach of the court as regards a non-genetic intended parent is inconsistent. Without a re-alignment of the ECtHR case law to standardize the approach taken to non-genetic intended parents, the court continues to indirectly prioritize genetic relatedness. As Bracken states, ‘for a Court that has long championed the protection of de facto family ties, this focus on genetics as a means to prioritize the interests of some children is significant’,⁸⁷ and arguably, untenable. On the basis of the child’s identity rights, Mulligan has persuasively argued that the margin of appreciation should be narrowed, as it was in Mennesson, whenever the issue at stake is the legal status of the surrogate-born child, irrespective of the existence of a genetic link.⁸⁸ Such an approach would create a more consistent obligation upon States. Therefore, the ECtHR should adopt a uniform approach to acknowledging the relationship between non-genetic intended parents and the surrogate-born child, regardless of the existence of a genetic intended parent.

3. Inconsistency No 3: restrictions on methods of recognition

For any intended parent trying to obtain legal recognition of their relationship with the surrogate-born child, other than the genetic intended father (where recognition is required by way of transcription of the birth certificate), the ECtHR has confirmed that there is no particular method that is required in order to comply with Article 8. Therefore, domestic methods for establishing legal parenthood, such as through adoption proceedings, will be sufficient from an ECtHR perspective. However, Horsey has argued that establishing parenthood via adoption could be contrary to the child’s best interests, for failing to adequately reflect the child’s identity and providing an artificial record of their birth.⁸⁹ Further still, an inconsistency arises in the approach of ECtHR in deciding whether the restrictions on methods of recognition, such as adoption, are acceptable or not.

In DB v Switzerland, adoption was possible to secure legal parenthood following surrogacy but was—at the time of the child’s birth—limited to opposite-sex couples. The intended parents, as a same-sex couple, were therefore unable to apply for adoption until a change in the law. The ECtHR found that Switzerland had overstepped the margin of appreciation by not making timely legislative provision for such a possibility, thus finding that the child’s Article 8 rights had been unlawfully interfered with. Similarly, in KK v Denmark,⁹⁰ the Danish authorities refused the adoption application because the surrogacy arrangement had been commercial in nature, thus contravening the adoption provisions which dictated that payments could not have been made to the birth mother. Again, the ECtHR held that denying an adoption order based on the payments was a disproportionate interference with the applicant’s Article 8 rights. These cases demonstrate that restrictions on access to adoption which have the effect of preventing legal parenthood being established—even where those restrictions are based on legitimate public policy concerns of the relevant State—are contrary to Article 8, demonstrating the increasingly interventionist approach of the ECtHR in this area.⁹¹

However, it is necessary to compare these cases with AM v Norway. In this case, adoption was possible as a method of establishing legal parenthood, but the genetic intended father—as the child’s legal father—was refusing to give consent to the adoption order. Such consent was a requisite for an adoption order being made. In light of the earlier cases, one might have expected that this restriction on adoption would amount to a breach of Article 8 in denying the realization of the legal relationship between the intended mother and child. However, the ECtHR differed in its outcome, finding that there had been no violation of Article 8 because the refusal of consent by the father was not a State interference and the court did not dispute the requirement of consent for adoption.

Whilst it is true that the unavailability of adoption in AM was owing to the father’s action of refusing consent as opposed to a State interference, the requirement for consent being absolute in nature was provided for in the legislation—and that legislative provision, therefore, was a positive State decision. Just as limiting adoption to opposite-sex couples or restricting access to adoption when payments have been made will prevent the parent–child relationship being legally secured, so too did the requirement for consent by the father. Yet it is only in the latter situation that the ECtHR did not find a violation of Article 8. Effectively deferring to the father’s consent in this case, rather than looking at legislation which provided for that consent requirement, has led to an inconsistency. In all three cases, adoption was possible to recognize the non-genetic intended parent as a legal parent, yet there were different outcomes as to what legitimate restrictions on those adoption proceedings are. The fact that the requirement for the father’s consent was an acceptable restriction, whilst the other two requirements were not, merely seems to reinforce the argument made throughout this article that the ECtHR continues to prioritize the male genetic link, to the disadvantage of the second parent, whether genetically related to the child or not.

To ensure greater consistency in the ECtHR, enabling a better forecasting of the likelihood of successfully challenging restrictions on acquiring parenthood following surrogacy, the ECtHR should—as a minimum—look to the legislation as opposed to the individual parties involved in the proceedings. Had the ECtHR in AM v Norway considered the issue in terms of the framing of the legislation, as opposed to the refusal of consent of the father, the outcome may have been more consistent with DB v Switzerland and KK v Denmark, thus enabling parenthood to be established as it was in the child’s country of birth. However, as argued earlier in the article, even greater certainty would be achieved by recognizing the parental status as attributed in the child’s country of birth: such an approach would remove the need for the ECtHR to assess the adequacy of domestic adoption proceedings and would guarantee equal recognition of parental status for all intended parents.

IV. Conclusion

The ECtHR jurisprudence demonstrates a narrowing of the margin of appreciation and discretion available to States to prohibit surrogacy as a practice, which will not be welcomed by those who continue to perceive surrogacy as inherently exploitative and contrary to public policy.⁹² However, the ECtHR has primarily centred the requirement to recognize the relationship between intended parents and children on the child’s right to respect for private life under Article 8, focusing on how the intended parents form part of the child’s identity. It would therefore not be accurate to assert that the case law establishes a right of intended parents to become parents through surrogacy: rather, once a child has been born, their private life, including their identity, can demand accommodations by the receiving State to facilitate the relationship.

However, a fundamental grounding of the ECtHR’s approach is the genetic relatedness of at least one intended parent. Even though the Advisory Opinion demonstrates willingness to recognize relationships beyond those with a genetic link, Paradiso, Valdis, and AM v Norway exemplify how non-genetic parents are more limited in their ability to obtain recognition of the relationship. Children born without a genetic link to their intended parents are comparatively disadvantaged to those with a genetic link, given that they could remain ‘de facto parentless’ despite a best interests perspective commanding recognition with the intended parents.⁹³ Further, even where one intended parent does have a genetic link to the child, the non-genetic parent (or genetic mother) cannot be guaranteed recognition, thus privileging genetic relatedness and undermining the equal role of all intended parents in the child’s identity and private life. This ignores the equal contribution to the ‘parental project of creating a family and bringing a child into this work’,⁹⁴ and fails to acknowledge the role that non-genetic intended parents have in the child’s identity.⁹⁵

As surrogacy continues to increase in prevalence and intended parents continue to cross borders to evade domestic restrictions on the practice, legal challenges to States’ responses will inevitably rise. The thematic analysis undertaken within this article demonstrates the disparate approach the court takes depending upon the nature of the genetic link that the intended parents have with the surrogate-born child. By reflecting upon the full range of ECtHR case law relating to recognition of parenthood following surrogacy, significant inconsistencies were identified: the male genetic link is prioritized, non-genetic intended parents are treated differently depending upon the existence of a relationship with a genetic parent, and restrictions on establishing parenthood by means such as adoption are incoherently permitted. These inconsistencies must be addressed in future ECtHR decisions to prevent ongoing discrepancies based on gendered priorities of genetic links and an undermining of non-genetic intended parents. The findings in this article support a decisive shift in the ECtHR’s approach, requiring States to recognize the parental status of intended parents validly established overseas, regardless of gender or genetic link. Extending the approach taken to genetic fathers to any individual who is attributed legal parenthood in the child’s country of birth—whether through a birth certificate or court order—would ensure that all intended parents are considered equal in relation to the child’s identity and private life.

Whilst this would not be welcomed by those who seek to restrict surrogacy as a practice, it must be acknowledged that domestic prohibitions on the practice merely force intended parents to other jurisdictions. Once a child has been born, it is essential that their rights are respected and the most appropriate individuals can establish legal parenthood: in the vast majority cases, it will be in the child’s best interests for this to be the intended parents. As such, it is essential that work continues at an international level to agree minimum standards in relation to surrogacy, ideally to include a transnational agreement to recognize the attribution of legal parenthood as established in the country of birth. Such an international response would resultantly avoid the need for continued challenges to be made to the ECtHR.

Conflict of interest statement: None declared.

Footnotes

Acknowledgements

Some of the thematic work in this article is drawn from my PhD thesis. Thank you to my supervisors and examiners for their thoughtful comments on the whole thesis. Thank you to Dr Victoria Adkins for her advice throughout the development of this article.

Ethics approval

Ethics approval is not necessary.