25 Dec Children born through a gestational surrogacy arrangement – ECtHR judgment following the first advisory opinion of 10 April 2019
In its decision in the case of C and E v. France (applications nos. 1462/18 and 17348/18, 12.12.2019) the European Court of Human Rights has unanimously declared the applications inadmissible as being manifestly ill-founded.
The case concerned the French authorities’ refusal to enter in the French register of births, marriages and deaths the full details of the birth certificates of children born abroad through a gestational surrogacy arrangement and conceived using the gametes of the intended father and a third-party donor, in so far as the birth certificates designated the intended mother as the legal mother.
Application no. 1462/18 was lodged by three French nationals: Mr. and Mrs. C, born in 1963 and 1965 respectively, and a child born in 2010. The child was born in February 2010 in the United States, having been conceived using the gametes of Mr. C and a third-party donor. The birth certificate, drawn up in October 2010 in Florida, named Mrs. C as the mother and Mr. C as the father.
Application no. 17348/18 was lodged by five French nationals: Mr. and Mrs. E, born in 1962 and 1969, and three children born in 2014. The three children were born in February 2014 in Ghana, having been conceived using the gametes of Mr. E and a third-party donor. Their birth certificates, drawn up in Ghana in May 2014, named Mrs. E as their mother and Mr. E as their father. Mr. and Mrs. E requested the French embassy in Ghana to enter the details of the birth certificates in the register.
Having in mind complains under Article 8, the Court observed that, on 10 April 2019, it had delivered an advisory opinion concerning situations where children had been born abroad as the result of a gestational surrogacy arrangement, having been conceived using the gametes of the intended father and a third-party donor, and where the legal relationship between the child and the intended father had been recognised in domestic law. In its advisory opinion of 10 April 2019 the Court had specified that, at the latest when, according to the assessment of the circumstances of each case, the relationship between the child and the intended mother had become a practical reality, an effective mechanism should exist enabling that relationship to be recognised. Nevertheless, the Court considered that in the present case it would not place an excessive burden on the children concerned to expect the applicants to initiate adoption proceedings now for that purpose. The Court observed in particular that it emerged from the information provided by the Government that the average waiting time for a decision was only 4.1 months in the case of full adoption and 4.7 months in the case of simple adoption. Consequently, the Court concluded that the French authorities’ refusal to enter the details of the children’s foreign birth certificates in the French register was not disproportionate to the aims pursued. This part of the applications was therefore manifestly ill-founded.
Regarding the Article 14 (prohibition of discrimination) read in conjunction with Article 8, the Court specified that the only difference between “other children born abroad” and “children born abroad through a gestational surrogacy arrangement” was that the latter could not have the full details of the foreign birth certificate entered in the register, and had to have recourse to adoption. It noted that it was clear from the Government’s explanations that this difference in treatment regarding the means of establishing the legal mother-child relationship, since it entailed supervision by the courts, made it possible to verify in the specific circumstances of each case whether it was in the best interests of a child born through a gestational surrogacy arrangement for such a relationship to be established with the intended mother.
The Court had indicated in its advisory opinion of 10 April 2019 that the choice of means by which to permit recognition of the legal relationship between the child and the intended parents fell within the States’ margin of appreciation, and that Article 8 did not impose a general obligation on States to recognise a parent-child relationship between the child and the intended mother from the outset. Consequently, the difference in treatment complained of was based on an objective and reasonable justification. This part of the applications was therefore manifestly ill-founded.
References from the official website of the European Court of Human Rights