European Court of Human Rights uses its newly-granted power to issue an advisory opinion on citizens

Last month, we finished our post on the relation between nationality law and the Council of Europe (not to be confused with the European Union) by saying that the European Court of Human Rights had just published its very first advisory opinion since the Court was granted this power under Protocol no. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms on 1 August 2018. In fact, the advisory opinion is a concrete follow up to the judgments of 26 June 2014 in Sylvie Mennesson v. France and Francis Labassee v. France, where the Court stipulated that aspects relating to one’s social identity need to have consequences for the nationality position of children born from cross-border surrogacy arrangements. Concretely, the Court found a violation of the children’s right to respect for their private life as laid down in Article 8 of the European Convention on Human Rights (ECHR).

In its advisory opinion of 10 April 2019, the Court explains how the request by the French Court of Cassation is linked to its earlier judgments:

The present request for an advisory opinion was made in the context of domestic proceedings designed to re-examine the appeal on points of law by the applicants in the case of Mennesson, in which the Court held that there had been no violation of the applicants’ right to respect for their family life, but found a violation of the children’s right to respect for their private life […]. Hence, it appears that the domestic proceedings concern the recognition in the French legal system – regard being had to the children’s right to respect for their private life – of a legal parent-child relationship between an intended mother and children born abroad through a gestational surrogacy arrangement and conceived using the gametes of the intended father and a third-party donor, in a situation where registration of the details of the foreign birth certificate is possible in so far as the certificate designates the intended father where he is the children’s biological father.

It follows from the above that the Court looked at a surrogacy situation which “explicitly includes the factual element of a father with a biological link to the child in question”, while there was no biological link between the child and the intended mother. However, since technological developments are progressing rapidly in this domain and in view of the evolution of the issue of surrogacy, the Court is aware “that it may be called upon in the future to further develop its case-law in this field”.

Two factors carry particular weight: the child’s best interests and the scope of the margin of appreciation available to the States Parties. As regards the first factor, the Court finds that “the general and absolute impossibility [under French law] 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, which require at a minimum that each situation be examined in the light of the particular circumstances of the case”. In so doing the Court relies on its findings in Mennesson, where it was held that the non-recognition by the State of the relationship between a child and the intended mother “is disadvantageous to the child, as it places him or her in a position of legal uncertainty regarding his or her identity within society”. For example, the child is at risk of being denied access to the intended mother’s nationality; may experience more difficulties to remain in the intended mother’s country of residence and to inherit from her; and the continued relationship between mother and child is placed at risk if the intended parents separate or the intended father dies.

As for the second factor, the States’ margin of appreciation, the Court devotes an entire section of its opinion on a comparative-law survey covering forty-three States Parties to the ECHR to determine the existence or not of common ground between the laws of the Contracting States. While recognising the sensitive moral and ethical implications of surrogacy and the lack of European consensus on the issue, which argues in favour of a wide margin of appreciation, the Court nonetheless finds that where a particularly important facet of an individual’s identity is at stake (in this case the legal parent-child relationship), the margin allowed to the State needs to be restricted. Moreover, observing that the issues at stake go beyond the mere question of the children’s identity, the Court holds that “other essential aspects of their private life come into play where the matter concerns the environment in which they live and develop and the persons responsible for meeting their needs and ensuring their welfare”. All this lends further support to the Court’s finding that a reduced margin of appreciation is appropriate.

As the Court already speculated, this will certainly not be the last time that questions arise regarding the legal (citizenship) implications of surrogacy arrangements. Also, the possibly far-reaching impact of surrogacy arrangements and assisted reproduction technologies in the future may have the effect that the term ius sanguinis is dropped in favour of ius filiationis (as we previously discussed here).

Author: Dr. Olivier Vonk