20 Dec The child’s right to private life violated by the lack of provision for alternative ways of recognizing children born to same-sex couples through surrogacy

In the case of D.B. and Others v. Switzerland (applications nos. 58817/15 and 58252/15, 22.11.2022) the European Court of Human Rights held, 

• by a majority of six votes to one, that there had been a violation of Article 8 (right to respect for private life of a child born through surrogacy) of the European Convention on Human Rights, and 
• unanimously, that there had been no violation of Article 8 (right to respect for family life of the intended father and the genetic father).

The case concerned a same-sex couple who were registered partners and had entered into a gestational surrogacy contract in the United States under which the third applicant had been born. The applicants complained in particular that the Swiss authorities had refused to recognise the parent-child relationship established by a US court between the intended father (the first applicant) and the child born through surrogacy (the third applicant). The Swiss authorities had recognised the parent-child relationship between the genetic father (the second applicant) and the child. The Court stated that the chief feature which distinguished the case from those it had decided before was that the first two applicants were a same-sex couple in a registered partnership. Regarding the third applicant, the Court noted that, at the time he was born, domestic law had afforded the applicants no possibility of recognition of the parent-child relationship between the intended parent (the first applicant) and the child. Adoption had been open to married couples only, to the exclusion of those in registered partnerships. Not until 1 January 2018 had it become possible to adopt the child of a registered partner. Thus, for nearly seven years and eight months, the applicants had had no possibility of securing definitive recognition of the parent-child relationship. 

The Court therefore held that for the Swiss authorities to withhold recognition of the lawfully issued foreign birth certificate in so far as it concerned the parent-child relationship between the intended father (the first applicant) and the child born through surrogacy in the United States, without providing for alternative means of recognising that relationship, had not been in the best interests of the child. 

In other words the general and absolute impossibility, for a significant period of time, of obtaining recognition of the relationship between the child and the first applicant had amounted to a disproportionate interference with the third applicant’s right to respect for private life under Article 8. Switzerland had therefore overstepped its margin of appreciation by not making timely legislative provision for such a possibility.

Regarding the first and second applicants, the Court first observed that the surrogacy arrangement which they had used to start a family had been contrary to Swiss public policy. It went on to hold that the practical difficulties they might encounter in their family life in the absence of recognition under Swiss law of the relationship between the first and third applicants were within the limits of compliance with Article 8 of the Convention.

Reference from the official website of the European Court of Human Rights