The European Court of Human Rights (ECtHR) has handed down its first advisory opinion under Protocol No. 16 in response to a request made by the French Court of Cassation on the issue of surrogacy.
Protocol No. 16 allows the higher courts of the member states of the Council of Europe request the ECtHR to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention, in the context of cases pending before the national courts. The advisory opinions issued by the Court are reasoned and non-binding, and allow greater dialogue between the ECtHR and the higher national courts. The Protocol came into force on 1 August 2018 when it was ratified by France. This was the tenth ratification of the Protocol, which triggered its entry into force.
The request from the French Court of Cassation concerned clarification of the obligation to transcribe the foreign birth certificate of a child born through surrogacy, which is illegal in France. This was specifically within the context of gestational surrogacy, where the child is not biologically related to the surrogate mother.
This follows two ECtHR rulings in 2014 and 2016 in which France’s refusal to transcribe such birth certificates was found to have breached Article 8. The French court believed there was still uncertainty as to the “margin of appreciation available to state parties” in respect of transcribing birth certificates which “designate the ‘mother of intention’ regardless of any biological reality”.
In its opinion, the ECtHR observed that where a particularly important facet of an individual’s identity was at stake, such as where the legal parent-child relationship was concerned, the margin allowed to the State was normally restricted. Given the requirements of the child’s best interests and the reduced margin of appreciation, the ECtHR was of the opinion that the right to respect for private life of a child born abroad through a gestational surrogacy arrangement required 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’.
The ECtHR, however, considered that the means of how to recognise the legal relationship between the child and the intended parents fell within the States’ margin of appreciation. The best interests of the child required recognition of that relationship when it had become a practical reality to do so. This was for the national authorities to decide and could be done in a manner that produced similar effects to registration of a foreign birth certificate, such as adoption.
Click here for the advisory opinion of the ECtHR.