In its first advisory opinion, the European Court of Human Rights (ECtHR) considered the parental rights, under French law, of intended mothers to children born abroad through a surrogacy arrangement. See ECtHR, 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, Request no. P16-2018-001, Advisory Opinion of 10 April 2019. The Court established that intended mothers, whether biological or not, should have the possibility of obtaining legal recognition in France of their relationship with the child where the intended (and biological) father has been legally recognized and where the intended mother is identified as the “legal mother” in the foreign birth certificate. The advisory opinion is the Court’s first since the entry into force, in 2018, of Protocol No. 16, which authorizes the highest courts of States parties to request opinions from the Court on the interpretation or application of the to the European Convention on Human Rights with regard to specific legal questions. [IJRC] It remains to be seen how France will continue with the domestic proceedings that were postponed pending the ECtHR’s opinion. See 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, Advisory Opinion of 10 April 2019, at para. 18.
This advisory opinion emanates from the facts and events of the ECtHR’s judgment in the 2014 Mennesson v. France (no. 65192/11) case. See id. at para. 10. In that case, two children born in the United States via a surrogacy arrangement were denied legal recognition, in France, of their relationship with their intended parents, even though that relationship was legally recognized in the U.S. See id. at para. 10. The European Court decided that there had been no violation of any party’s right to respect of their family life, but that the children’s right to respect for private life had been violated. See id. at para. 11. The Court reasoned that the right to respect for private life included the ability to determine details of one’s identity, which includes the identification of one’s legal parents. See id. at para. 12.
This ruling expressly noted that it can never be in the best interests of the child to deny legal recognition of the relationship between children and their “intended” and biological father. See id. at para. 13. Since that ruling, French courts have allowed the registration of the intended father as the legal father, if he was also the biological father of the children in question, but did not provide the same recognition to the intended mother. See id. at para. 14. The only option under French law is for an intended mother to adopt her spouse’s child, provided she is married to the biological and intended father. See id. In 2017, the Mennessons, acting as their children’s legal representatives, requested a new decision regarding their appeal against the Paris Court of Appeals’ 2010 decision to annul the legal recognition of both parents’ relationship with their two children. The French Court of Cassation requested an advisory opinion from the European Court for the purposes of re-examining that appeal. See id. at paras. 16-17.
The Advisory Opinion
The French Court of Cassation requested this advisory opinion on October 12, 2018. See id. at para. 1. On December 3, 2018 the five-judge panel of the Grand Chamber accepted the request, which raised two questions for the ECtHR:
1. By refusing to enter in the register of births, marriages and deaths the details of the birth certificate of a child born abroad as the result of a gestational surrogacy arrangement, in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child’s biological father, is a State Party overstepping its margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In this connection should a distinction be drawn according to whether or not the child was conceived using the eggs of the ‘intended mother’?
2. In the event of an answer in the affirmative to either of the two questions above, would the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship, ensure compliance with the requirements of Article 8 of the Convention?
See id. at paras. 2, 9. Article 8 of the European Convention on Human Rights protects the right to respect for private and family life.
State’s Refusal to Legally Recognize “Intended Mother”
In consideration of the first question, the ECtHR prioritized two factors: 1) the best interest of the child; and, 2) the scope of the margin of appreciation afforded to France in fulfilling its human rights obligations. See id. at para. 37. With respect to the best interests of the child, the European Court noted that while the State may have an interest in preventing individuals from undergoing procedures to assist their reproduction efforts that are legally precluded domestically, children who are conceived via such arrangements stand to face substantial hardships in the absence of the legal recognition of the relationship to their parents. See id. at paras. 39, 40. Specifically, the ECtHR stated that the children’s right to respect for private life under Article 8 of the European Convention is negatively impacted when domestic law does not recognize the legal relationship between children conceived via assisted reproduction methods, such as surrogacy, and their intended mother. See id. at para. 40. The Court further stated that an “absolute impossibility of obtaining recognition of the relationship between a child born through a surrogacy arrangement entered into abroad and the intended mother is incompatible with the child’s best interests.” See id. at para. 42.
With respect to the State’s margin of appreciation, an important factor – determined on a case-by-case basis – is the existence of legal “common ground” between States in Europe. See id. at para. 43. The ECtHR considered relevant laws among other Council of Europe States and acknowledged the low level of consensus on this issue, which would suggest a greater margin of appreciation. See id. However, the ECtHR also noted that the margin of appreciation may be restricted in cases in which particularly important issues of identity, such as the legal recognition of a parent-child relationship, are at stake. See id. at paras. 43-44. Thus, the ECtHR concluded that the State’s margin of appreciation is reduced given the circumstances outlined in this case. See id. Considering the best interests of the child and the reduced margin of appreciation, the Court stated that Article 8 “requires that domestic law provide a 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.” See id. at para. 46.
Methods of Legal Recognition
With regard to the second question posed, the ECtHR considered Convention required a specific type of legal recognition of the parent-child relationship when there was no biological relationship between the child and intended mother. See id. at para. 48. The opinion states that the best interests of the child dictate that the period of legal uncertainty surrounding children’s relationship with their parents should be as brief as possible, but that this did not require that State adopt the exact details of birth certificates created abroad. See id. at paras. 49-50. Based on the lack of legal consensus within Europe and the Court’s view that an “individual’s identity is less directly at stake” when there is no biological relationship at issue, the Court concluded that it falls within States’ margin of appreciation to decide how exactly to recognize the parent-child relationship. See id. at para. 51. Therefore, alternatives including adoption by the intended mother may satisfy Article 8 so long as the process can be completed “promptly and effectively” and “in accordance with the best interests of the child.” See id. at para. 55. The ECtHR noted that it was not within the scope of its opinion to make a determination on the adequacy of French adoption law. See id. at para. 58.
Advisory Opinion Jurisdiction
On April 14, 2018, France became the tenth State to ratify Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedom, triggering its entry into force in August of that year. [ECtHR Press Release] This Protocol extended the jurisdiction of the European Court of Human Rights to include advisory jurisdiction for States that have ratified Protocol 16. [ECtHR Press Release]
To request an advisory opinion, a State court must provide reasons for its request, provide the relevant legal and factual background of the case, and must have the issue currently pending before it. See Protocol 16, art. 1(3). The State may submit written comments and may take part in the hearing. See id. at art. 3. The President of the ECtHR may also invite other States or individuals to submit comments or take part in the hearing. See id. While the advisory opinion of the ECtHR is non-binding on the State, the aim is to give the domestic courts guidance on interpretation of the relevant provisions of the Convention that relate to the case before it. See id. at art. 5; 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, Advisory Opinion of 10 April 2019, at para. 25. The ECtHR does not have jurisdiction to assess the facts of a domestic case or to interpret domestic law. See 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, Advisory Opinion of 10 April 2019, at para. 25. Ultimately, the requesting court or tribunal must still decide the case itself. See id.
So far, 13 States in the Council of Europe have ratified Protocol 16. Those are Albania, Andorra, Armenia, Estonia, Finland, France, Georgia, Greece, Lithuania, Netherlands, San Marino, Slovenia, and Ukraine. See Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 214. An additional nine States have signed but not ratified Protocol 16. Those are Belgium, Bosnia and Herzegovina Italy, Luxembourg, Norway, Republic of Moldova, Romania, Slovak Republic, and Turkey. See id.
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