3.2.1 Issues Raised by Gamete Donation

Gamete donation, regardless of its type, is still facing considerable scepticism. Erin Nelson noted that, although sperm donation and assisted insemination have been practised for well over 100 years, with the first case reported in 1884, many legal questions associated with this practice remain unresolved, most notably the legal status of human gametes.Footnote ³⁶ Additionally, some studies have suggested that donor-conceived children often report a need to know their genetic origins, and that the refusal to disclose genetic information can cause psychological damage (low self-esteem, trust issues).Footnote ³⁷ Nonetheless, such risks can be managed through the regulation of access to information, counselling and parenting education and do not support a call for banning gamete donation altogether. A more nuanced evaluation is necessary, taking into account all the stakeholders’ rights and interests. That said, the contribution of the European Court of Human Rights (ECtHR) to promoting the human rights perspective in this debate has been rather hesitant.

The Strasbourg case law indicates that the objection to the recognition of a right to intention-based parenthood under the ECHR does not stem from hostility to social (non-biological) parenthood; rather, it is inspired by concerns over the implications of third-party reproduction on the understanding of kinship. In S.H. and Others v. Austria,Footnote ³⁸ the Grand Chamber, overturning the Chamber ruling (which had supported the applicants’ pleas), held that Article 8 did not require States to permit ova donation for the treatment of infertile couples who depended on it to procreate. Criticising the Court’s focus on the ‘splitting of motherhood’ and ‘unusual family relations’, Rosamund Scott pointed out that ‘extensive empirical literature shows that there is no reason to have particular concern for the welfare of children born from donated gametes’.Footnote ³⁹ Indeed, the Court might have been expected to require the respondent to provide empirical evidence of any welfare concerns. More generally, human rights courts ought to be wary of accepting restrictions that are highly detrimental for some individuals based on speculative grounds. Admittedly, the precautionary principle can be invoked when there are very serious concerns, albeit accompanied by a paucity of evidence to confirm or allay them. However, if no serious concerns arise in relation to the psychological welfare of adopted children, they are even less likely to apply to ART-conceived children, who have been gestated and birthed by the (social, possibly also genetic) mother and immediately born into the rearing family, rather than following a transfer of legal parenthood in early life. Importantly, the issue of abandonment (which is at the root of potential distress for adopted children) does not arise; indeed, the child is very much wanted, and the parents will have gone to great lengths to conceive them, whereas the biological progenitors never intended to play a social role from the outset, their position being almost indistinguishable from that of organ donors.

The ‘split motherhood’ concern also does not explain the greater distrust of ova donation when compared to sperm donation. Once legal fictions of parenthood are accepted, and the law accommodates the dissociation between genetic and social/legal parenthood, the same approach should apply to both donors and to both intended parents, regardless of their gender. If the intended mother is impregnated with donor sperm and the intended father, not the genetic father, is treated as the legal father, there should be no greater difficulty in treating as a parent the intended mother into whose body an embryo created with donated ova is transferred, rather than the genetic mother. If anything, the woman who carries and gives birth to the child following ova donation and IVF has a greater connection to the child than the man who, albeit unrelated to the child, is treated as the legal father as a result of sperm donation.Footnote ⁴⁰

At the same time, the registration of a non-biological parent as the legal parent was said to be inconsistent with the child’s right to know his/her genetic origins,Footnote ⁴¹ an objection acknowledged, but not treated as decisive, in the 2019 Advisory Opinion.Footnote ⁴² In fact, it does not sit well with the acceptance in Europe of non-biological legal parenthood by virtue of adoption and presumptions of paternity. The understanding of parenthood in Europe has evolved towards accepting social parenthood as an alternative means of family formation, even if parental status obscures genetic reality. Naturally, the ECtHR will have to grapple with claims regarding the regulation of access to identifying and non-identifying information about the gamete donors and possibly siblings born as a result of the use of gametes from the same donor. Indeed, two challenges brought by donor-conceived children against the prohibition on access to information about the donors are pending before the Court.Footnote ⁴³

If (or, perhaps, when) the right to use gamete donation becomes a part of the right to respect for private and family life, in the way the S.H. and Others v. Austria Chamber decision had anticipated, the Strasbourg Court will have to reckon with further questions. One issue before domestic legislators has been the eligibility for such treatment. Arguably, reproductively challenged individuals ought to benefit from the same freedom to reproduce enjoyed by those who can reproduce naturally without medical assistance, that is to say, the freedom to reproduce without being subject to public scrutiny and having to satisfy prescribed criteria for access to parenthood. Gillian Douglas has convincingly suggested that ‘the “adoption” model of legal regulation of assisted reproduction … is undesirable, and the law should consistently apply the “sexual intercourse” model’.Footnote ⁴⁴ In fact, in adoption proceedings, the specific needs of existing children and the suitability of the match between prospective adopters and children waiting for a family need to be taken into account. Conversely, these considerations do not apply to future children. Moreover, just because it would be logistically impossible for the State to vet plans for natural reproduction, whereas a sifting process can be put in place for assisted reproduction, a double standard is not justified, that is, additional controls over the procreative plans of individuals afflicted by some form of infertility. For those capable of procreating without medical assistance, the right to become a parent can be exercised freely without any hurdles, for example, without a licence to procreate, without any requirements in terms of the number and spacing of children or without economic/social preconditions in terms of family environment for the future child. When, for a person, the effective exercise of this right requires medical treatment, the freedom to make choices about parenthood must not be restricted in ways that natural procreation is not. Admittedly, the welfare of the future children and the ability to take responsibility for them ought to govern human reproduction in general. However, these principles should operate across both natural and assisted reproduction. It is also worth recalling that, while international human rights law does not guarantee a right to adopt an abandoned child, the right to become a parent is undisputed (as detailed in Chapter 2). It follows that an attempt to regulate access to reproduction for individuals with a physical or social impairment to natural reproduction needs to be more stringently justified than access to adoption.

While the right to resort to assisted fertilisation with donor was rejected in S.H. and Others v. Austria, a more ambivalent attitude was shown a few years later in D. and B. v. Austria, a claim that a law allowing heterosexual – but not same-sex – couples to make use of donor insemination and to exercise joint custody of the child so conceived is discriminatory.Footnote ⁴⁵ The case was struck out insofar as legislative reform, intervened shortly after the introduction of the complaint, granted the rights sought by the applicants (when the ART-born child raised by the female couple was approximately two-and-a-half-years old). The Court remarked in this regard the discretion States retain as to the timing of reform in relation to incipient rights: ‘The matter in question must still be regarded as one of evolving rights with no European consensus established as yet, where States consequently enjoy a certain margin of appreciation in the timing of the introduction of legislative changes.’Footnote ⁴⁶ Naturally, in the absence of prima facie discrimination in access to ART (e.g. in a jurisdiction prohibiting donor insemination for couples regardless of their sexual orientation), both the parties’ submissions and the Court’s analysis are likely to be different. A test case is needed to show if S.H. v. Austria has lost its relevance.

It is also worth noting that, although – in the absence of a clear authority – the conditions for granting access to donor insemination are still left to State discretion, decisions on complaints brought by same-sex couples in relation to existing children born through (usually overseas) donor insemination upheld the notion that effective legal mechanisms must exist for the protection of the de facto family life enjoyed by the child with the social parent (C.E. and Others v. France,Footnote ⁴⁷ Callamand v. France). A qualitative distinction must be drawn between the Court’s readiness to protect social bonds by requiring an avenue to maintain contact and support for the recognition of legal parenthood in the case of female couples using donor insemination. In Aspisi v. Italy, the Court was satisfied that Italian law contemplated the possibility for a person who had developed de facto family ties with a child to obtain measures aimed at the preservation of those ties.Footnote ⁴⁸ Conversely, it did not agree that the respondent had failed to meet its positive obligation to guarantee effective respect for the applicant’s family life by precluding her from legally recognising the child.Footnote ⁴⁹ The Court also attached importance to the mode of conception, the applicant and her same-sex partner having resorted to a private agreement with a man who had accepted to father a child without recognising it and exercising parental rights; since conception had taken place through natural intercourse, the Italian law on the recognition of parenthood for children conceived through medically assisted procreation did not apply.Footnote ⁵⁰ It is not clear if, had the female couple used DIY artificial insemination, the Court might have found that they were in the same situation as heterosexual couples and that the difference in treatment vis-à-vis the recognition of intended parenthood met Article 14 criteria. An argument can be made that, where access to assisted insemination with donor in medical facilities is denied, same-sex couples only have the option of DIY insemination (foreign treatment being discounted because it requires economic resources), and, therefore, couples resorting to it could be seen as being in a comparable situation to heterosexual couples who use medically assisted insemination.

3.2.2 Issues Raised by Embryo Donation

Another unconventional route to parenthood is embryo donation, whereby neither prospective parent is biologically related to the future child, although the intended mother has a gestational bond with the child. More often than not, this circumstance is likely to arise from the availability of excess embryos created during the IVF treatment of other couples; having completed their families, those couples are faced with the choice of either destroying the spare embryos, preserving them indefinitely, donating them to scientific research or donating them to infertile couples.Footnote ⁵¹ The process differs from adoption in several ways: the child is born only owing to the aspiring parents’ intention to procreate; the parents experience the pregnancy and the birth; and the mother forms a bond with the child through gestation.

There is no direct Strasbourg precedent on whether or not this technique ought to be permitted as a matter of human rights law. However, the ECtHR has had an opportunity to discuss the scope of decisional autonomy in relation to embryos created with a person’s own genetic material or that of a deceased close family member. The Parrillo v. Italy judgment, by removing the absolute decision-making power from a progenitor of the embryo, at least when the other progenitor is deceased and their wishes cannot be ascertained,Footnote ⁵² raised issues as to the status of the embryo and intimated that the State is entitled and potentially under a duty to protect it. Thus, Parrillo may lend support to the proposition that, if the couple of progenitors are willing to ‘adopt out’ the surplus embryos to an infertile couple, the State should not force them to destroy, indefinitely preserve (until natural death) or donate the embryos to research; in fact, all these alternatives are less protective of the embryo, as well as disrespecting the autonomy of both sets of couples.

If, however, the progenitors are unwilling to donate their unused embryos to others, it would seem far-fetched to contend that those embryos are entitled to being treated as abandoned embryos and thus to ‘adoption’, whereby the State would compulsorily make them available for the treatment of others. Firstly, this would result in unintentional biological parenthood for the birth parents and go against the right not to procreate, upheld in Evans v. The United Kingdom even in the absence of allocation of legal parenthood;Footnote ⁵³ forcing individuals to act as donors would constitute a severe interference with their self-determination rights. Secondly, there are practical complexities: after what period of preservation without being used are the embryos deemed abandoned? The couple may wish to defer the extension of the family or at least maintain that option. Is it then after both progenitors’ death? If couples must ‘use or lose’ their embryos by law, should the progenitors have a say in the selection of the ‘adoptive’ parents, by analogy with the voluntary relinquishment of parental rights in consensual adoption processes? Should the infertile couple chosen by the progenitors of the embryos as future parents be vetted by the State? As Fiona MacCallum has pointed out, ‘embryo donation is a medical solution to a medical problem, whereas adoption is a social response to a social problem’.Footnote ⁵⁴ Children born out of embryo donation are integrated into the family before birth and do not have the same needs arising from being abandoned by their parents and from the adjustment to a new family environment (the rationale for a probationary period before adoption); this suggests that State involvement with donors/‘adopters’ is less justified in the case of embryo donation.

As regards the welfare of any children born through embryo donation, it cannot be simplistically maintained that they would be harmed, if brought into existence, merely by the lack of genetic ties to their parents or by the lack of knowledge of genetic parents/siblings. Naturally, the regulation of access to information for children born through embryo donation is not uncontroversial. Although such children ‘do have a gestational link to their rearing parents’ and ‘do not have the same gap in their life stories’ as adopted children, they may benefit from access to information for their sense of identity.Footnote ⁵⁵ Additionally, assuming that they are aware of the circumstances of their conception, children born from donated embryos have knowledge that they likely have full siblings (children born to the donor couple), which may give rise to a further interest in gaining genetic information. This remains, however, subject to the welfare of the donor couple and their children, as well as to their rights to privacy. Moreover, the rights of children born from donated embryos need to be balanced against the rights of their legal parents, who may wish to preserve the confidentiality of the donation to the outside world and the child. Finally, the removal of donor anonymity may adversely affect the rights of other infertile couples, to the extent that it deters donation, so there may be legitimate policy objections to it.

A comparison with the points raised in Odièvre v. France in relation to secretive births and adopted children’s rights to identifying information might be useful.Footnote ⁵⁶ According to the Grand Chamber in that case, a person’s right to know their origins can be trumped by competing interests, such as the natural mother’s right to confidentiality and the general interest in discouraging illegal abortions, unsafe births, and children being abandoned in improper ways (the possible consequences of non-consensual disclosure of information); these public policy objections are subsumed under the aim to ensure respect for life, which ranks highly in the Convention scheme.Footnote ⁵⁷ Eva Steiner has commented that ‘the concept of “origins”, which was at the core of the application to the court and a central issue, is neither fully nor clearly defined’.Footnote ⁵⁸ In particular, for Steiner the ruling was unhelpful in determining whether, applied to medically assisted procreation, the notion may give rise to the same right – as for adopted children – to identifying information about gamete donors.Footnote ⁵⁹ Admittedly, there is some ambiguity in the Odièvre judgment as regards the application of the right to know one’s origins outside the sphere of children born through intercourse. However, it seems reasonably clear that ‘the right to know’ is not confined to lineage but is much broader: ‘In the Court’s opinion, people “have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development”.’Footnote ⁶⁰ The reliance, for this proposition, on Gaskin v. The United Kingdom,Footnote ⁶¹ which concerned not genealogy but the circumstances of one’s early upbringing in foster care, further supports this conclusion. The Odièvre judgment also recalled ‘the vital interest of a person in receiving the information necessary to uncover the truth about an important aspect of his or her personal identity’, as established in Mikulić v. Croatia.Footnote ⁶² It is not obvious that the circumstances surrounding conception are part of early development, but there is a strong case for it; they are certainly an important aspect of identity. This is not to suggest that, when in conflict with other rights (social parents’ rights, donors’ rights, the donors’ families’ rights, the general interest not to deter donors), the right to information of embryo donation children would necessarily prevail. Children born through embryo donation do not experience the personal history gap seen as problematic in Gaskin, nor the complete lack of paternal affiliation underlying the Mikulić decision; as such, a different balancing exercise might be appropriate, including differing to the donors’ or parents’ choice.

3.3.1 The Non-biological Parent Married to the Biological Parent: Parasitic Rights

To date, the interpretation of the ECHR has not established any obligation for States to recognise the legal parenthood of non-biological intended parents of children born through (foreign) surrogacy,Footnote ⁶³ with one important exception. If the child is biologically related to one member of the couple, who has been recognised as a legal parent, the other intended parent, if married to the genetic parent, must be able to avail himself or herself of an efficient, expedited mechanism for the acquisition of parenthood, for example, fast-track adoption proceedings. This principle was first established by the ECtHR in the exercise of its advisory jurisdiction and then confirmed in contentious proceedings.

In 2019, an opinion requested by the French Court of Cassation presented the Grand Chamber with an opportunity to pronounce on ECHR requirements vis-à-vis the recognition of the non-genetic intended parent in foreign surrogacy arrangements. The background to the request was a change in French law in the aftermath of the Mennesson judgment,Footnote ⁶⁴ whereby the intended and genetic father of a child born through surrogacy abroad was registered as the legal father, while the intended non-genetic mother had the option to adopt the child, subject to statutory criteria and a child welfare assessment.Footnote ⁶⁵ According to the 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, where a child was conceived using the intended father’s gametes and donor eggs and born abroad through a gestational surrogacy arrangement, and where the legal parent–child relationship with the intended father has been recognised in domestic law, the child’s right to respect for private life requires that domestic law provide a possibility of recognition of a legal parent–child relationship with the intended mother, designated in the birth certificate and legally established abroad as the legal mother.Footnote ⁶⁶

This conclusion was primarily based on two factors. First, the paramountcy of the child’s best interests, and most notably the practical disadvantages facing the child in case of non-recognition: the uncertainty surrounding his/her identity within society; obstacles in accessing the intended mother’s nationality and the right to stay in her country of residence; problems regarding inheritance rights and the continuity of the relationship with the intended mother in the event of her separation from the child’s father or of the father’s death.Footnote ⁶⁷ Second, the narrow margin of appreciation retained by States, notwithstanding the absence of European consensus, in respect of measures affecting important facets of an individual’s identity: in this case, not only the legal child–parent relationship but also the environment in which children live and develop as well as the persons responsible for their care and ensuring their welfare.Footnote ⁶⁸

This analysis suggests that ECHR Member States are expected to safeguard the relationship between a child born through foreign gestational surrogacy using an egg donor and the intended/social mother. Even though the Opinion appears to require merely an obligation of conduct, rather than one of result (i.e. only to provide an avenue for the acquisition of parenthood, without guarantees of success), restrictive eligibility conditions and an arbitrary ‘best interests’ assessment leading to the denial of an adoption application may amount to a violation of Article 8. Indeed, the Court’s emphasis both on the disadvantages that the child would suffer as a result of non-recognition and on the multidimensional identity issue at stake, which limits domestic discretion, is likely to require rather exceptional grounds for the denial of recognition.

At the same time, the Opinion clarified that there is no obligation to register the intended mother on the birth certificate and recognise the legal affiliation domestically ab initio, even though she was designated as the legal mother on the foreign birth certificate and notwithstanding the fact that the surrogacy arrangement entered into abroad had the effect of conferring legal parenthood in that jurisdiction. While underlining that the period of legal uncertainty should be as short-lived as possible,Footnote ⁶⁹ the ECtHR accepted that the child’s right to respect for private life does not require the recognition of the parent–child relationship to take the form of entry of the details of the foreign birth certificate into the register of births; a different means, such as the adoption of the child by the intended mother, was equally acceptable for those purposes.Footnote ⁷⁰ The Court viewed the choice of means for the recognition as less directly connected to individual identity than the establishment of the principle of recognition; coupled with the lack of European consensus on the matter, this left the exact route to recognition within the States’ margin of appreciation.Footnote ⁷¹ Importantly, however, an avenue must be available to formalise the relationship as soon as de facto family life has been established: ‘What the child’s best interests … require is for recognition of that relationship, legally established abroad, to be possible at the latest when it has become a practical reality.’Footnote ⁷²

The Opinion is thus moderately progressive, in that it creates an obligation to ensure an opportunity to promptly establish affiliation between the surrogate-born child and the intended mother, the details of which are left to the discretion of each State. It is worth noting that, like the recognition of affiliation between the child and the genetic intended father, this obligation is based on the child’s right to respect for his or her private life, and not on the intended mother’s rights. Moreover, the issue before the Court was limited to the recognition of effects of foreign surrogacy arrangements and does not advance an infertile person’s right to use surrogacy domestically together with a fertile spouse and be recognised as a legal parent. The Opinion, therefore, only safeguards family ties already created by lawful foreign surrogacy arrangements. The ability to reproduce through recourse to surrogacy remains the privilege of wealthy couples who can travel abroad for the requisite period of time.

Another interesting aspect of the Advisory Opinion, eloquently noted by Alice Margaria, is the reversal of roles within the married couple as regards the legitimisation of the relationship with the child when contrasted with the pater est presumption, namely the construction of motherhood ‘as a derivative of fatherhood’:

While the Advisory Opinion is technically non-binding, it expresses the Court’s authoritative interpretation of Convention obligations. As cogently put across in a Separate Opinion in the case of D.B. and Others v. Switzerland, the Court’s interpretation of Convention law does not vary depending on the form in which it is expressed (judgment/opinion), and indeed the interpretation of the Grand Chamber (the only Court formation enabled to render opinions) is particularly authoritative.Footnote ⁷⁴ It was further observed that, in the same way that judgments against a particular State only bind that State, but the interpretation on points of law have erga omnes value, the interpretation returned in advisory opinions is opposable to all ECHR States, including those that did not ratify Protocol 16, which is why Article 3 of the Protocol allows third-party intervention by non-ratifying States.Footnote ⁷⁵ The jurisprudence of the Court thus spreads fluidly across judgments and opinions. This was explicitly anticipated in the Explanatory Report on Protocol No. 16:

The tenets put forward in Advisory Opinion P16-2018-001 were, unsurprisingly,Footnote ⁷⁷ confirmed and applied in subsequent contentious proceedings.

The first such occasion was the joint admissibility decision in C. and E. v. France, issued a few months after the 2019 opinion.Footnote ⁷⁸ The two applications challenged the authorities’ refusal to record in the national register of births the full details of the foreign birth certificates of surrogacy-born children (one child born to the first couple in the USA, triplets born to the second couple in Ghana), in particular the designation of the intended mothers as the legal mothers. As the Court noted, the two cases conformed to the matrix examined in the Advisory Opinion: the children had been born through a foreign surrogacy arrangement; conception had been brought about with the gametes of the intended fathers and third-party donor ova; and the affiliation between the intended fathers and the children had been recognised in domestic law.Footnote ⁷⁹ Since, in line with the Advisory Opinion, the route of adoption of their spouses’ children was opened to the intended mothers, the applications were declared manifestly ill-founded.Footnote ⁸⁰

Although it was accepted in C. and E. v. France that the refusal to fully transcribe the foreign birth certificates amounted to an interference with the children’s private lives,Footnote ⁸¹ that interference was not deemed disproportionate.Footnote ⁸² The Court conceded that an effective mechanism for establishing legal ties had become available with certainty only in July 2017, when the children were seven and three years old, respectively, that is, a considerable time after the relationship between the children and their intended mothers had become a practical reality.Footnote ⁸³ However, it reasoned that requiring the applicant children to wait for the adoption procedure to be completed henceforth was not an excessive burden, taking into account the relatively short period of time involved (the average waiting time for a decision was only 4.1 months for a full adoption and 4.7 months for a simple adoption).Footnote ⁸⁴

There is a certain paradox in the Court’s conclusion that the refusal to transcribe the certificates of birth was not disproportionate because an alternative mechanism secured the same result,Footnote ⁸⁵ when that mechanism was unavailable at the material time (in 2014). The Court also departs from the principle, set out in Marckx v. Belgium, that leaving the child motherless in the eyes of the law even for a short period of time (thirteen days in that case) goes against the child’s interests and breaches his/her right to respect for family life.Footnote ⁸⁶ It would seem that, in surrogacy cases, the Court is prepared to stretch legal argumentation in such a way as to avoid penalising States that are at the vanguard of the protection of new and still rather controversial rights. Moreover, the much wider discretion afforded to States as to the manner of establishing maternal affiliation in surrogacy cases where donor ova were used, including concessions to relatively time-consuming procedures found unacceptable in illegitimate children’s cases, clearly discloses an understanding of parenthood as primarily biological parenthood.

Similar assumptions guide the Court’s analysis of the claim, under Article 14 read in conjunction with Article 8, that the respondent discriminated against children born through foreign surrogacy arrangements when compared to other children born overseas, whose foreign birth certificates are transcribed in their entirety. Relying on its Article 14 jurisprudence, as articulated by the Grand Chamber in Biao v. Denmark,Footnote ⁸⁷ the Court redefined the difference in treatment more narrowly, that is, consisting of a different route to obtaining recognition of the maternal affiliation indicated on the foreign birth certificate (adoption/full transcription of the birth certificate);Footnote ⁸⁸ it thus found that the different means to establish maternal ties in the case of surrogate-born children were objectively and reasonably justified, in that they permitted judicial checks over the circumstances of each case and whether recognition was in the child’s best interests.Footnote ⁸⁹ The discrimination claim on behalf of the children was, therefore, also rejected as manifestly ill-founded.Footnote ⁹⁰ Naturally, to couch the issue in the terms chosen by the Court, one needs to gloss over the fact that the adoption route was not guaranteed at the material time. While the decision, therefore, provides an up-to-date assessment of the ECHR compatibility of that particular legislative solution, there is merit in the proposition that it does not do justice to the parties.

The practical relevance of the 2019 Advisory Opinion became more prominent in 2022, in a case where not only was the intended parent not recognised as such ab initio, but there was also a bar on step-parent adoption as a route to filiation where the woman who had carried the children and whose consent to adoption was required had received remuneration. In K.K. and Others v. Denmark, applying the principles in the Advisory Opinion, the Court held that the children’s right to respect for their private lives had been breached by the complete impossibility of establishing legal ties with the intended mother.Footnote ⁹¹ It was concluded that the Danish authorities had failed to strike a balance between the children’s interests and the public interest in controlling commercial surrogacy.Footnote ⁹²

Conversely, in K.K. and Others v. Denmark, the societal interest at stake was found sufficient to justify the interference with the intended mother’s right to private life;Footnote ⁹³ it was also found sufficient, taking into account the State’s margin of appreciation, as regards the interference with the family life of those concerned: in fact, the parties did not face any practical difficulties in enjoying family life together; the children had acquired Dutch nationality through their father; and the commissioning mother had obtained shared custody.Footnote ⁹⁴

Interestingly, while in C.E. and Others v. France the Court had accepted that legal instruments existed to enable the relationship between the ART-born child and the mother’s (former) same-sex partner, including a court order for joint parental responsibility, which permitted the exercise of certain rights and duties associated with parenthood and hence a degree of legal recognition of the relationship,Footnote ⁹⁵ in K.K. v. Denmark, the shared custody order (albeit not subject to termination by divorce or the death of the father) was not deemed satisfactory.Footnote ⁹⁶ The case thus allowed the Court to consider which alternative to registration as a legal parent ab initio and step-parent adoption met the requirements set in the Advisory Opinion for the prompt and effective establishment of a legal relationship between the surrogate-born child and the non-genetic commissioning mother. It would seem that mechanisms falling short of establishing a parent–child relationship do not meet that standard, due to the impact of lesser measures on the child’s identity:

What is also remarkable about the K.K. v. Denmark judgment is the shift towards a more pragmatic approach to the balancing exercise between competing interests in the case at hand: the Court moves away from the accommodation of speculative interests, such as the surrogate mother’s parental rights (evidently not pursued), and associates the notion of the child’s best interests with the recognition of the long-term social mother as a legal parent, regardless of any mitigations in the law for the bar on adoptionFootnote ⁹⁸ and the absence of practical difficulties:

The approach to inheritance rights is particularly significant. The analysis is brief; it acknowledges the equivalent practical effect of a will by the social mother, but also the departure from the situation of other children under Danish law; in fact, ‘the children would not be her heirs by virtue of a legal parent–child relationship, unlike the situation for other children in Denmark’.Footnote ¹⁰⁰ There is no examination of whether the different treatment of surrogate-born children amounts to discrimination on the grounds of the circumstances of conception. Rather, the underlying concern is reminiscent of the quest for the normalcy of family life in Marckx v. Belgium, which includes automatic inheritance rights. This is a welcome departure from the treatment of parental status as a largely inconsequential symbolic perk, which may be successfully replaced by other mechanisms conferring some stability and rights associated with parenthood. However, the judgment would have benefitted from a less superficial discussion of this point; in fact, it is precisely on the effective protection of family life through existing mechanisms that the joint dissenting opinion diverges from the majority.Footnote ¹⁰¹ A major lacuna in the analysis concerns the social mother’s intentional parenthood, without which the observation that the children perceived her as a parent figure blurred the line between step-parents and intended parents. It is arguably the initial parental project, corroborated by social parenthood, that justifies the Court’s emphasis on the need to create a parent–child relationship, rather than a package of legal safeguards of equivalent effect. Nor can a long-term step-parent/carer claim central relevance to a person’s identity outside the context of surrogacy: what distinguishes the position of the intended mother is that her design led to conception.

The C. and E. v. France and K.K. v. Denmark rulings, giving full legal force to the principles put forward in the Advisory Opinion, have withdrawn from ECHR States the ability to deny the recognition of filial ties between the intended mother and the surrogate-born child. At the same time, these cases have cemented the distinction between biological parenthood materialised through a surrogacy agreement and intentional parenthood with no biological link to the surrogate-born child. It is now well established that the ECHR allows States a choice of means in relation to the legal recognition of the unrelated commissioning mother, rather than mandating the transcription of the foreign birth certificate and recognition of maternal affiliation from the outset (by contrast with paternal affiliation); however, the absence of an effective mechanism for establishing legal ties will breach Article 8 ECHR. Even more remarkably, in D.B. and Others v. Switzerland, the Court has reached a similar conclusion in the case of foreign surrogacy involving same-sex intended fathers.Footnote ¹⁰²

Notwithstanding these favourable developments, applications by intended parents may still fail, depending on the couple’s circumstances. In A.M. v. Norway, a couple had continued in the USA their endeavours to have a child via surrogacy (which was illegal in Norway) after the breakdown of their relationship, and the US authorities had recognised both parties as parents, although an anonymous donor egg had been used for the IVF procedure, and therefore only the man was genetically related to the child; the child initially lived with the intended mother after birth, while the father visited daily, and subsequently an alternate residence arrangement was put into place.Footnote ¹⁰³ After the recognition by Norwegian authorities of the father (but not of the mother) as a legal parent, a series of disagreements between the parties on contact and parenting arrangements, and the involvement of child welfare services (concerned that daily moves between the parties were not in the child’s best interests), the child remained with the father, who discontinued all contact with the mother.Footnote ¹⁰⁴ All attempts by the latter to adopt the child and secure access to the child remained fruitless. Step-parent adoption was not possible as long as the child had two parents (and the US surrogate was regarded as the child’s mother), nor did the former partner, the child’s father, consent to adoption;Footnote ¹⁰⁵ contact rights required a formal legal basis, whereas the intended mother lacked legal ties with the child under Norwegian law, and her American motherhood was treated as irrelevant.Footnote ¹⁰⁶ Before the Strasbourg Court, the applicant complained that the Norwegian authorities’ refusal to grant her contact rights in respect of the child or to recognise her as the child’s mother, either by acknowledging the US-issued birth certificate or by approving her requests for parenthood, had violated her right to respect for her private and family life.Footnote ¹⁰⁷

The claim in relation to contact was declared inadmissible for non-exhaustion of domestic remedies, and therefore the case does not illuminate the alleged right to contact between the child and the intended mother.Footnote ¹⁰⁸ As regards the recognition of legal motherhood, the Court found Article 8 applicable in its ‘private life’ limb, which extends to ‘emotional bonds created and developed between an adult and a child in situations other than the classic situations of kinship’.Footnote ¹⁰⁹ It did not consider it necessary to examine whether family life also applied, refusing therefore to take a definitive view on the matter.Footnote ¹¹⁰ The Dissenting Opinion of Judge Jelić aptly criticised the majority’s decision not to examine the family life aspect of the case, noting that ‘the applicant’s involvement in the first 17 months of X’s life means that she played a crucial role in shaping his development as a young child’.Footnote ¹¹¹

As to the aim of the interference, the Court accepted that the proceedings pursued the protection of the ‘rights of others’ (the child) and the prevention of ‘disorder or crime’, in that ‘the lack of recognition of parenthood on the basis of the surrogacy agreement was linked to the prohibition against surrogacy in Norway’.Footnote ¹¹² The Court also recalled that ‘it regards as legitimate under Article 8 § 2 the domestic authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent–child relationship with a view to protecting children’.Footnote ¹¹³

In terms of proportionality, the Court noted the applicant’s awareness at the time of the surrogacy agreement that the only means for the transfer of parenthood following overseas surrogacy was step-parent adoption with the consent of the parent with parental responsibility, even though she could not anticipate his decision to cut her off from the child’s life.Footnote ¹¹⁴ It also recalled the sensitive issues involved by the regulation of surrogacy and the lack of consensus in EuropeFootnote ¹¹⁵ and found that the consent requirement for step-parent adoption as a general rule was not objectionable.Footnote ¹¹⁶ Additionally, there is a reference to the diligent judicial exercise of balancing conflict interests and the margin of appreciation enjoyed by domestic courts for those purposes.Footnote ¹¹⁷

Where the Court probably errs is in finding that the applicant’s predicament was not the result of any intervention by the authorities, whereas the fact that step-parent adoption made no allowance for situations where the child had been planned jointly and was a legal child in another jurisdiction arguably was a lacuna in domestic law:

It is arguably the responsibility of public authorities to protect individuals against the detrimental action of third parties affecting their private and family life (see, mutatis mutandis, the discussion of Evans v. The United Kingdom in Chapter 2, in which the law afforded one party a veto right on the other party’s parenthood). The Court ought to have considered (a) whether the State had to treat the applicant’s situation differently from step-parent adoption, that is, adoption of a child who was the product of another couple’s parenthood plans, and (b) whether measures should have been put in place to reduce the excessive decision-making power held by the genetic parent, capable of nullifying the prospects of continued family life (after seventeen months of de facto care). The emphasis, in Judge O’Leary’s Concurring Opinion, on the need for parental consent to adoptionFootnote ¹¹⁹ overlooks the inadequacy of adoption principles (regulating the creation of legal ties between a child and an unrelated adult) when applied to parenthood following ART (i.e. the creation of legal ties between the child and one of the moral authors of conception as well as a legal parent in the jurisdiction where treatment was received). However, Judge O’Leary also notes that the facts of the case reflect the concern expressed by the Court in the 2019 Advisory Opinion over the precariousness of the relationship between the intended mother and the child (if the relationship is not recognised) in case of separation from, or death of, the genetic father and thus may disclose a gap in legislation.Footnote ¹²⁰

It is worth recalling that, in donor insemination cases, such as C.E. and Others v. France, the existence of legal avenues for the allocation of parenthood and contact post separation, independent from the consent of the biological parent, was deemed important in assessing compliance with positive obligations under Article 8 (admittedly, after a lengthier period of cohabitation).Footnote ¹²¹ By contrast, Judge Jelić’s Dissenting Opinion in A.M. v. Norway highlighted the imbalance of power between the two intended parents, ‘one person being able to make life-changing decisions over another person’,Footnote ¹²² in particular the biological parent having the authority to exclude the other from the child’s life and to consent to adoption by his new partner.Footnote ¹²³ The dissenter also aptly suggested that ‘awarding such large powers to one person is not only discriminatory against the parent who was biologically unable to procreate, it also acts contrary to the intended purpose of surrogacy and the interest of the child’.Footnote ¹²⁴ In fact, the child’s right to identity is understood as encompassing the right to know one’s parents, ‘broadened to include intended parents who were supposed to be the mother or father of the child right from the beginning of the surrogacy proceedings’.Footnote ¹²⁵

This case solidifies the notion that the social parent in surrogacy arrangements has a claim to the transfer of parenthood only to the extent that he/she is in a relationship with the biological parent. The distinction between the applicant in A.M. v. Norway and the cases considered earlier is that her position was only based on intentional parenthood and de facto care, without being bolstered by her relationship with the other – genetic – intended parent.Footnote ¹²⁶ Naturally, this is unsatisfactory in several respects. The first is the best interests of the child, which are not served by a legal system effectively leaving the child motherless; the notional motherhood of the overseas surrogate, uninterested in parenting, is of no benefit to the child and adds to confusion as to their identity, even more so in gestational surrogacy cases, where the record of the surrogate’s name does not provide the child with knowledge of their genetic heritage. Although, procedurally, the applicant in A.M. did not have standing to bring a complaint on the child’s behalf,Footnote ¹²⁷ the primacy of the child’s interests, upheld as a general ECHR principle, should govern the balancing exercise in deciding the allocation of parenthood. The second criticism that the approach in A.M. inevitably inspires is that parenthood is anchored in coupledom to such an extent that it sacrifices the legitimate individual expectations of the social parent, left to depend entirely on their partner, despite their participation in the parental project, the effective care given to the child, as well as their formal recognition as a legal parent in the State where the surrogacy arrangement took place. Arguably, the parenthood of the social parent should be irrevocably crystallised when the couple undergoes treatment resulting in conception; save for the event in which the person refuses to act as a parent after the child’s birth, their parental status should not be subject to subsequent events in the couple’s romantic life. Thirdly, allowing parenthood ties to vary according to the fluctuations of the couple’s relationship after conception and birth creates a considerable amount of legal uncertainty over the child’s identity, which benefits neither the childFootnote ¹²⁸ nor, indeed, the social parent (deprived of their relationship with the child after substantial emotional and financial investment) or the surrogate (burdened with responsibilities she had not signed up to). It may marginally benefit the genetic parent, although a second parent is also a resource, and the genetic parent’s interests should be in alignment with those of the child, including the enjoyment of the support and affection of two parents, where available.

The acknowledgement of parasitic Article 8 rights for the non-genetic commissioning parent in surrogacy arrangements in the Advisory Opinion and subsequent case law mirrors the Court’s approach to intentional parenthood in cross-border assisted fertilisation cases, as seen in Gas and Dubois v. France. Intention alone does not create parenthood under the Convention case law; it needs to be corroborated by an indirect tie to the child, through the child’s genetic parent. The dependency of any successful claim in Strasbourg upon the legal relationship (typically marriage) between the intended social parent and the child’s genetic parent is further confirmed by the outcome of applications in which neither commissioning parent is genetically related to the child. This situation will be examined in greater detail in the following section.

3.3.2 Intentional Parenthood Where Neither Commissioning Parent Is Genetically Related to the Child

Perhaps more than any other reproductive technique, surrogacy arrangements in which both intended parents are biological strangers to the child conjure up ‘baby selling’ scenarios, although the objection that surrogacy commodifies children is wider.Footnote ¹²⁹ In some jurisdictions, in order for the intended parents to be treated in law as the parents of the surrogate-born child, at least one of them must have a genetic link with the child (i.e. the gametes of at least one of them must have been used to bring about the creation of the embryo placed in the surrogate or for her artificial insemination).Footnote ¹³⁰ Similarly, in the case of proceedings brought by a sole applicant, a parental order can be awarded only if the latter is genetically related to the child.Footnote ¹³¹ Katherine Wade has pointed out that, although the rationale invoked for the need for a genetic link is ‘to protect against parents “commissioning” children for adoption’, this justification is called into question by the fact that ‘no such requirement exists in the case of non-surrogate birth following double gamete donation’.Footnote ¹³² Admittedly, to some extent, this inconsistency may appear problematic; however, in the case of non-surrogate births with no genetic ties to the woman who carries the child (or to her partner), the gestational link between the intended mother and the child may be seen as establishing a connection that the law could legitimately endorse as a form of affiliation. In Strasbourg jurisprudence, the absence of a genetic link has proven fatal to Article 8 applications, but for very different reasons: one substantive and one procedural.

First, from a substantive viewpoint, for the ECtHR it is the surrogate-born child’s right to the preservation of his/her identity that triggers the obligation to recognise affiliation with the genetic parent and his spouse, not the ‘intellectual’ responsibility for the child’s birth. Second, from a procedural perspective, commissioning couples without any genetic link to the child were deemed to lack locus standi to bring an application on behalf of the child in Strasbourg proceedings. These two hurdles to establishing ECHR entitlements in relation to surrogacy-born children were highlighted by Paradiso and Campanelli v. Italy and Valdís Fjölnisdóttir and Others v. Iceland, both of which indicate that, for the ECtHR, intention to become a parent alone does not attract the application of ‘family life’ guarantees in the assisted reproduction context.Footnote ¹³³ If the surrogacy arrangement fails and, due to error or fraud, neither member of the couple is genetically related to the child (the Paradiso and Campanelli scenario), or if the parental plan did not include genetic ties from the outset (the Valdís Fjölnisdóttir scenario), the notion of ‘family life’ does not apply to the relationship between the commissioning parents and the children, except where the passage of time (four years in Valdís Fjölnisdóttir) creates a de facto family-like situation.

As discussed in Chapter 2, even the biological father’s Article 8 claim has been unsuccessful in foreign surrogacy cases, and his right to be recognised as a legal parent is a mere consequence of the child’s privacy rights, which include the protection of genetic affiliation. The previous section (Section 3.3.1) has shown that the non-genetic intended parent’s right to recognition as a parent (e.g. through adoption) is also a parasitic right, depending not only on the child’s right to a stable family environment but also on the marital ties with the child’s biological parent. Valdís Fjölnisdóttir, a case where neither party was a genetic parent by design, established that foster care arrangements in relation to the surrogate child are suitable to protect existing long-term family-like arrangements; the recognition of legal parenthood is not required. In addition, but for the long-term care situation tolerated by the domestic authorities, despite the non-recognition of the foreign birth certificate (by contrast with Paradiso, where the child was swiftly removed from the commissioning parents), in all likelihood, the Court would not have found ‘family life’ engaged at all.

The Paradiso and Campanelli v. Italy case reveals a particularly unfavourable approach to intentional parenthood in foreign surrogacy cases where no genetic ties exist, the territorial State does not permit surrogacy, and the co-habitation has not been extensive. The case concerned the removal by the Italian authorities of a child born in Russia through a gestational surrogacy contract between an Italian couple and a Russian company (entirely licit according to the law of the forum) once it was ascertained that the child did not have biological links with the father. The complaint lamented the placement of the child in a children’s home at the age of nine months and his ultimate adoption by strangers, following an adoption procedure which excluded the intended parents and de facto carers since birth.

The facts of the case are somewhat peculiar, in that the parenthood project, based on genetic fatherhood, had been thwarted by the fertility clinic, unbeknownst to the commissioning parents. The in vitro fertilisation procedure the couple had undergone in Russia had purportedly used the commissioning father’s sperm, and the child had been registered in Russia as the applicant’s son with the surrogate mother’s consent. Following the request for registration in Italy of the Russian birth certificate, which contained no reference to the gestational surrogacy, the Italian authorities had placed the applicants under investigation for the alteration of civil status. A DNA test carried out at a court’s request after the public prosecutor had opened proceedings to release the child for adoption (on the basis that he was to be considered abandoned) showed that there was no genetic link between the commissioning father and the child. The child was removed from the applicants; all contact was terminated; he was given a new name and adopted by another family; in the adoption proceedings, the domestic court held that the applicants did not have legal standing to intervene.

Relying on Article 8 ECHR, the applicants alleged that the refusal to recognise the legal parent–child relationship, the removal of the child from their home and his placement in State care infringed the right to respect for their private and family life. The Court determined that the couple did not have legal standing to apply on behalf of the child, and therefore, unlike Mennesson, the case revolved exclusively around the commissioning parents’ rights. This decision is questionable: the applicants, albeit the legal parents of the child in one of the jurisdictions participating in the ECHR system,Footnote ¹³⁴ were treated as strangers in relation to the child, according to an interpretation adhering to the respondent State’s legal system, to which the Court owed no allegiance or preference. Parental status according to the law of one State (the child’s birth country) should arguably give rise to standing and permit international judicial oversight. Since the nationality of a Member State is not a prerequisite for filing a complaint before the ECtHR,Footnote ¹³⁵ the individuals and families applying in Strasbourg bring with them their own personal law (including potentially the law of a non-ECHR State), and the Court accepts their status as defined by that law. In diversely regulated cross-border situations, such as international surrogacy arrangements, and given the importance of the children’s best interests, one relevant legal connection between the child and the carers (albeit not recognisable in all ECHR States) should be sufficient to allow the Court to consider whether the impugned measure was respectful of the child’s welfare. Otherwise, treating as relevant only the legal ties recognised by the respondent State leads to paradoxical gaps in the protection of foreign family units, such as the failure to recognise as related same-sex spouses – where the State of residence does not recognise gay marriage – or heterosexual spouses, if one of them was seventeen at the time of the marriage ceremony and the respondent State sets the minimum marriageable age at eighteen.Footnote ¹³⁶

The radical contrast between the Chamber’s and the Grand Chamber’s evaluation of the same set of facts demonstrates the potential for wide-ranging legal arguments in assisted reproduction cases, leading to opposite conclusions. Although, notwithstanding the commissioning parents’ intention, neither had a biological link with the child (owing to fraud or error in the Russian IVF procedure), the Chamber that initially examined the case found that the parent–child relationship established abroad (the child having lived with, and being cared for by, the applicants for the first few months of his life) engaged both the ‘private life’ and ‘family life’ facets of Article 8. In fact, the Chamber reiterated that ‘the existence or non-existence of family life is essentially a question of fact depending upon the real existence in practice of close personal ties’;Footnote ¹³⁷ it thus found that ‘the applicants had acted as parents towards the child … [and] there existed a de facto family life between the applicants and the child’.Footnote ¹³⁸ Importantly, the ruling required the interference with Article 8 rights to be proportionate, according to Convention standards, even in an area of wide State discretion and characterised by a lack of European consensus. Critical for the development of human rights standards in the field of ART, the Chamber decision confirmed that the Strasbourg Court can perform an assessment of proportionality without having to proceed to a consensus analysis. Thus, it was held that, irrespective of the level of convergence among domestic laws on surrogacy, the Italian courts had acted disproportionately by removing the child from his carers and placing him with adopters; the applicants, who had previously been assessed as fit to adopt by the relevant domestic authorities, ‘were found to be incapable of bringing up and loving the child on the sole ground that they had circumvented the adoption legislation, without any expert report having been ordered by the courts’.Footnote ¹³⁹

Moreover, from the child’s perspective, the consequence of the authorities’ actions was that ‘he had had no official existence for more than two years’.Footnote ¹⁴⁰ Following the Mennesson precedent, the Chamber stressed the State’s duty to ensure that the child is not penalised for being born to a surrogate mother in respect of citizenship or identity rights. The lack of proportionality of the measure was arguably compounded by the fact that insufficient consideration had been given to the irreversibility of the measure. Indeed, the Chamber’s decision in Paradiso and Campanelli noted that, since the child had developed emotional ties with the adopters, its finding of a breach of Article 8 was not to be read as requiring the return of the child to the applicants.Footnote ¹⁴¹ The standard of diligence required of the authorities in failed surrogacy cases should be the one developed in the area of non-consensual adoption; the child is, in fact, irrevocably separated from the only parents he has known all his life, who are also his legal parents according to the foreign jurisdiction where the birth took place.

The Grand Chamber’s revisitation of Paradiso and Campanelli, as with S.H. and Others v. Austria, reversed the Chamber’s decision in a way that expands State discretion. According to the Grand Chamber, the applicants had disregarded international adoption procedures by bringing into the country a child with whom neither of them had a biological tie, and had acted illegally by entering into an assisted reproduction agreement that was unlawful in Italy.Footnote ¹⁴² The judgment thus failed to acknowledge the deception to which the applicants fell victims in Russia and the legality of the surrogacy contract under Russian law. It only made a minimal concession to intentional parenthood followed by actual emotional bonds:

The analysis of the relationship between the intended parents and the surrogate-born child under Article 8 appears unduly influenced by the alleged illegality of the commissioning couple’s conduct. By contrast with the Chamber’s decision and despite the existence of a parental project, effective care and emotional bonds, the Grand Chamber’s ruling concluded that there was no de facto family life, citing the absence of biological ties, the short period during which the applicants had acted as parents (eight months) and the uncertainty of legal ties from the outset. This seems to be a punitive finding. It is, indeed, a regrettable departure from Moretti and Benedetti v. Italy,Footnote ¹⁴⁴ Kopf and Liberda v. AustriaFootnote ¹⁴⁵ and Wagner and J.M.W.L. v. Luxembourg,Footnote ¹⁴⁶ where Article 8 was found to apply to the relationship between young children and the persons who had acted as long-term carers despite the absence of biological ties (whether foster parents or adoptive parents under non-recognised foreign adoption decrees), and it seems intended to chastise the couple’s attempt to circumvent Italian law on parenthood.

From a ‘private life’ perspective, considering the commissioning couple’s intention to become parents and the exploration of various options to that end, the Grand Chamber accepted that Article 8 was applicable. In fact, what was at stake was the right to respect for the applicants’ decision to become parents and their personal development through the parental role they wished to assume; it is in this context that the Grand Chamber dwells more on intentional parenthood, linking it to personal development rather than family life:

In addition, the domestic proceedings seeking to verify the child’s biological ties with one of the intended parents and the establishment of genetic facts impacted the child’s identity and the relationship between the child and the alleged father. It was further accepted that the removal of the child had amounted to an interference with the applicants’ private life, which can extend to ‘the emotional bonds created and developed between an adult and a child in situations other than the classic situations of kinship’, as ‘this type of bond also pertains to individuals’ life and social identity’.Footnote ¹⁴⁸

This modest finding in relation to the ‘private life’ limb of Article 8 has nevertheless had its critics. According to Beaumont and Trimmings, ‘if the “close personal ties” between an adult and a child are not enough to constitute de facto “family life” then the removal of the child from the care of an adult should not be treated as an interference with their “private life”’.Footnote ¹⁴⁹ This objection does not take into account the significantly broader interpretation of private life when compared to family life. The relationship between same-sex partners, while not crossing the ‘family law’ threshold until 2010,Footnote ¹⁵⁰ was already accepted as engaging private life in the 1980s.Footnote ¹⁵¹ An extramarital affair, even when it produced children, was not analysed as ‘family life’ in the absence of stable cohabitation, but was found to constitute an aspect of private life.Footnote ¹⁵² The relationship between putative fathers and children with whom they never had an opportunity to develop effective ties, and hence family life, also falls within the notion of ‘private life’.Footnote ¹⁵³

Genetic ties appear central to the assessment of the parenthood project under Article 8, that is, to determining whether the intention to become a parent, acted upon, engages ‘family life’. In S.H. and Others v. Austria, the mere decision to use ART in order to conceive a child was also seen as an expression of family life; the Grand Chamber held that ‘the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life’.Footnote ¹⁵⁴ The distinction between S.H. and Paradiso is the absence, in the latter, of a genetic link. The Article 8 analysis was muddied in Paradiso by the discrepancy between the applicants’ initial plans (genetic parenthood for one of them) and the outcome (de facto care of a child unrelated to the couple, akin to adoption).

Even so, Strasbourg case law has indicated that, although the ECHR does not guarantee a right to become a parent through adoption, and no genetic link exists between adopter and adoptee, adoptive families are covered by the notion of ‘family life’ by virtue of the ‘adoption contract’:

It could be argued that the surrogacy arrangement – an agreement of quasi-contractual nature to transfer parenthood which produces legal effects in the jurisdiction where it is concluded, followed by birth registration or order vesting parenthood in the commissioning parents – creates legal ties analogous to adoption orders. Naturally, foreign adoption orders are more readily recognised, insofar as the institution of adoption is accepted in virtually all European States. However, this is not always the case, in particular where the eligibility criteria differ greatly (e.g. single applicants are able to adopt abroad, whereas the adopter’s country of residence only permits adoption by couples).Footnote ¹⁵⁶ This leads to difficulties similar to those encountered by the holders of foreign parental orders following surrogacy. In both cases, the foreign decisions create legal status, consolidated by de facto care. The fact that parental orders are more diversely regulated in Europe and elsewhere (and hence more controversial from a public policy perspective) should not detract from this analogy. By the same token, the fact that the Convention does not guarantee a right to reproduce through surrogacy should not mean that surrogacy-based families are not entitled to protection. The length of cohabitation should also not be decisive. In Pini and Bertani v. Romania, the relationship created by a lawful adoption order was sufficient to create ‘family life’ even in the absence of close personal ties, which suggests that the potential family life expected in accordance with the order creating parenthood ought to be protected.Footnote ¹⁵⁷

Despite finding that private life was engaged in Paradiso, the Grand Chamber viewed the interference with Article 8 rights as having a basis in the law and pursuing the legitimate aims of preventing disorder and protecting the rights of others (both the child at stake and future children). The domestic courts’ decisions were found to be appropriately based on the absence of genetic ties between the applicants and the child and on the applicants’ breach of domestic laws on international adoption and medically assisted reproduction. The well-foundedness of this assessment is questionable. The reference to international adoption rules ought to be seen as irrelevant, because the applicants had not pursued the adoption of an abandoned unrelated child from a foreign jurisdiction.Footnote ¹⁵⁸ Nor were domestic laws on medically assisted procreation breached: the assisted fertilisation treatment in question had been received abroad, in accordance with the laws governing it in that jurisdiction. It is submitted that the real crux of the case was whether the general policy objections against recognition of foreign civil status acts should prevail over the individual interests at stake. By focusing on the perceived culpability of the applicants, the Court failed to engage with the more difficult question before it.

The Grand Chamber ruling found that domestic courts were justified in attaching considerable weight to the illegality of the applicants’ conduct (undertaking abroad conduct contrary to Italian law) and to the need to take urgent measures to safeguard the welfare of the child, whom the authorities treated as abandoned, and to put an end to the illegal situation. It is far from obvious why the child was to be considered at risk with the applicants, since no flaws had been found in the care given to him. If the child did not have legal parents in the eyes of Italian law, or there was a public policy objection to the recognition of its parents under Russian law, the existing carers’ status could have been formalised in a manner consistent with public policy, for example, fostering or adoption rather than transcription of the Russian birth certificate. At the very least, the intended parents and, indeed, the parents according to Russian law should have been considered by the domestic courts as a placement option and allowed to apply for adoption.

Admittedly, the ECtHR was entitled to uphold the State’s prerogative to establish affiliation through adoption rather than the transcription of the foreign birth certificate, due to the public policy objection to surrogacy. It was also entitled to recognise that the case touched upon ethically sensitive issues (adoption, care proceedings, medically assisted reproduction, surrogate motherhood), in relation to which States enjoyed a wide margin of appreciation. However, the Court failed to consider whether the conflict of laws had been resolved through a necessary and proportionate interference with the applicants’ and the child’s rights. The decision appears dominated by the concern expressed by the dissenters at the Chamber stage over the State’s legislative freedom, rather than any genuine balancing of rights:

The Grand Chamber’s attempt to rationalise the pro-State decision arguably distorted the legal qualification of the dispute. Although the applicants bore partial responsibility for a foreseeably difficult legal situation, the Court’s readiness to endorse the excessive focus in domestic proceedings on the illegality of their conduct is open to criticism.Footnote ¹⁶⁰ In fact, the couple had acted in accordance with the laws of the jurisdiction where the surrogacy arrangement and birth registration took place; consequently, the case did not concern the applicants’ moral turpitude – such that they would not be fit to parent the child – but a technical conflict-of-law issue. In its previous Thlimmenos v. Greece ruling, the Grand Chamber had recognised that the law excluding a conscientious objector from the profession of chartered account due to his criminal conviction for refusing to comply with draft obligations unjustifiably treated him as a person having committed morally reprehensible acts and being unfit for certain occupations.Footnote ¹⁶¹ Analogously, in Paradiso and Campanelli, the Court ought to have found that nothing in the applicants’ conduct, albeit illegal under domestic law, denoted moral infirmity rendering them unfit parents. The dispute hinged, rather, on the balance between Italy’s interest in enforcing its private international law rules (including non-recognition of foreign surrogate births in relation to Italian residents) and the interests of the applicants and the child. The Court could have found the non-recognition of affiliation within the Article 8(2) parameters, but the removal of the child – instead of an alternative solution allowing the child to remain in a stable, loving family environment – should have been found disproportionate to the aim of discouraging Italian residents from entering into surrogacy arrangements abroad.

In addition, the case law on the recognition of adoption-based relationships lawfully created abroad, albeit in a manner inconsistent with domestic rules on the eligibility for adoption, suggests that the children’s best interests may require an exceptional departure from domestic law and the accommodation of otherwise incompatible foreign adoption decrees.Footnote ¹⁶² In fact, notwithstanding the State’s legitimate policy objections against recognition, the failure to offer legal protection to existing family life may be a disproportionate interference with the parties’ Article 8 rights. For instance, in Wagner and J.M.W.L. v. Luxembourg, a single woman had adopted a three-year-old girl in Peru and sought to have the Peruvian adoption decision declared enforceable in Luxembourg, so as to secure her daughter’s acquisition of Luxembourg nationality. However, her application had been dismissed insofar as, under domestic law, only married couples were eligible to adopt. The Strasbourg Court agreed that there had been an interference with the applicant’s and her daughter’s right to respect for family life,Footnote ¹⁶³ which pursued the legitimate aim of protecting ‘health or morals’ and the ‘rights and freedoms’ of the child.Footnote ¹⁶⁴ Conversely, the Court did not find that the measure was ‘necessary in a democratic society’. It noted the broad European consensus in favour of single adoption by unmarried persons,Footnote ¹⁶⁵ but also reasoned that the refusal to recognise the applicants as a family did not take into account social reality and the significant difficulties they encountered in their everyday lives, such as the need to regularly apply for a resident permit and a visa to travel to certain destinations.Footnote ¹⁶⁶ Importantly, the ruling concluded that the impugned measure did not promote the best interests of the child,Footnote ¹⁶⁷ as well as amounting to discrimination; in fact, the child had been penalised on account of her status as the adoptive child of an unmarried mother whose family ties were based on a foreign adoption order.Footnote ¹⁶⁸

The recognition of foreign surrogacy exhibits the same tension – seen in the treatment of foreign adoption – between the aim of discouraging residents from circumventing domestic rules and the need to protect the welfare of minors, and it should arguably be similarly resolved by giving precedence to the latter. The argument that social parents should not be allowed to face the State with a fait accompli is appealing;Footnote ¹⁶⁹ however, notice must be taken of the fact that they acted legally abroad, according to the law of the State where surrogacy arrangements and the administrative or judicial procedure allocating legal parenthood took place. Allowing them to benefit from a foreign law incompatible with their national law should not be confused with allowing a person to profit from their wrongdoing. This distinction regrettably appears to escape part of the scholarship; criticising the dissenters’ observation in Paradiso (the Grand Chamber’s judgment) that ‘family life’ did exist, Beaumont and Trimmings suggested that the ‘illegality of the formation of family life’ should contribute to ‘determining the “factual” question as to whether there is de facto family life’.Footnote ¹⁷⁰ Family life in this case was formed in Russia, where the aspiring parents had acted lawfully when using services provided in accordance with Russian regulations and proceeding with the birth registration procedure available under municipal law. Non-recognition of the family ties under Italian rules of private international law is not tantamount to the illegal formation of the family. The family life in Paradiso would have been based on illegality if, for example, the applicants had kidnapped a baby from the hospital and then bonded with him – in such a case, the very formation of de facto family life would have been tarnished by the initial illegal conduct (child abduction is illegal in every jurisdiction and can legitimately influence the Article 8 assessment). But there is yet a further problem with the suggestion that the parents of surrogate-born children should not benefit from the ‘family life’ qualification: should Russian commissioning parents with a valid Italian visa (or dual Russian-Italian nationals) relocating to Italy with their surrogate-born child not be recognised as a family unit? Clearly, when the distinction between illegality and conflict of laws is blurred, the consequences can be illogical.

Moreover, the analysis of ‘family life’ made no concession to the father’s decision to become a biological parent (subverted by the negligence or fraud of the fertility clinic) and to his emotional investment during six months in which he believed he was raising his biological child. Marianna Iliadou noted that, according to the decision in Nazarenko v. Russia,Footnote ¹⁷¹ ‘the belief of genetic parenthood supports a finding of de facto family ties where the duration of shared life is long’.Footnote ¹⁷² Although Paradiso can be distinguished on the basis of the relatively short duration of shared life, the judgment was too dismissive of the father’s belief that he was the genetic father, which speaks to the quality of the bond and may compensate for the brief cohabitation.

As to the applicants’ interest in continuing their relationship with the child, the domestic court in Paradiso had expressed concern that the child might be an instrument to fulfil a narcissistic desire of the applicants. The ECtHR regrettably accepted an argument that degrades the human aspiration to become a parent altogether, whether through natural procreation or adoption. Problematically, it failed to address the intolerant, pejorative approach of the domestic courts to surrogacy arrangements lawfully entered into abroad:

The ECtHR ought to have questioned the logical link in the domestic ruling between the recourse to reproductive techniques abroad as permitted by the relevant law and a couple’s inability to love and educate a biologically unrelated child.

Moreover, the Court acknowledged that ‘the Italian courts attached little weight to the applicants’ interest in continuing to develop their relationship with a child whose parents they wished to be’ and ‘did not explicitly address the impact which the immediate and irreversible separation from the child would have on their private life’; however, this was deemed justified in light of ‘the illegality of the applicants’ conduct and the fact that their relationship with the child was precarious from the very moment that they decided to take up residence with him in Italy’.Footnote ¹⁷⁴ This is no different from suggesting that a man entering a gay marriage and wishing to be joined by his spouse in his country of residence, which only permits heterosexual marriage, should be treated as a criminal and cannot expect the protection of Article 8. A person’s family life should not be seen as unrecognisable under Article 8 ECHR merely because it was not recognised in his State of nationality or because he had foreknowledge of obstacles to recognition.

Additionally, the same finding of discrimination under Article 14 read in conjunction with Article 8 noted in foreign adoption cases is also warranted in foreign surrogacy cases. In fact, in the absence of some form of recognition of legal ties with the social parents, the surrogate-born child is penalised, that is, deprived of legal protections, merely on the basis of the circumstances of his/her conception and place of birth. Whether or not the application is also brought on behalf of the child, the impact of the measure on the child needs to be included in the proportionality assessment. Moreover, albeit stressing that the child was not an applicant, nor a member of the applicants’ family within the meaning of Article 8, the Court acknowledged that the domestic courts’ treatment of the child’s best interests was not irrelevant and recalled that Article 3 of the UN Convention on the Rights of the Child (UNCRC)Footnote ¹⁷⁵ required the child’s best interests to be treated as the primary consideration in any actions concerning children.Footnote ¹⁷⁶ However, the judgment only paid lip service to this principle. The test it set for the removal of the child by the authorities – whether it caused ‘irreparable damage’ or not – belies that approach. It is equally obvious that the first consideration was the preservation of the State’s prerogative to refuse to recognise overseas surrogacy.

The departure, in foreign surrogacy cases, from the pre-eminence of the child’s best interests, upheld in the case law on foreign adoption, might be explained by the added element of discomfort with ARTs. This seems to widen the margin of appreciation and lead the Court to endorse far-fetched domestic assessments of necessity and proportionality. In Paradiso, the procedure releasing the child for adoption – without giving those who had cared for him in the first eight months of his life an opportunity to apply to adopt and make representations to the social workers/the court overseeing the case – ran contrary to everyone’s interest. Nonetheless, the Grand Chamber readily accepted that any measure other than the immediate removal of the child and termination of all contact carried the risk that the passage of time would have determined the outcome of the case; placing the child in a legal limbo for two years was seen as preferable to allowing the intended parents to be successful in their enterprise. Arguably, the harm of having the case determined by long-term care (inability to send a deterring message to prospective commissioning parents) was not greater than the harm caused to the child by the change in care arrangements and the separation from the only parents he had known. Excessive emphasis seems to be placed in Paradiso and Campanelli on the need to avoid sanctioning a fait accompli, at the expense of the child’s welfare and the applicants’ Article 8 rights.

While the State’s wish to reaffirm its exclusive competence to define legal parent–child relationships was understandably treated as a legitimate aim, the proportionality analysis was unduly skewed in favour of the State. The Court ‘accept[ed] that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake’.Footnote ¹⁷⁷ It is highly uncharacteristic of ECHR jurisprudence to find a fair balance achieved when the trauma suffered by a child is ‘not irreparable’. The State-appeasing judicial agenda underlying the distortion of the proportionality and best interests analysis transpires from the conclusion to the judgment: ‘Agreeing to let the child stay with the applicants, possibly with a view to becoming his adoptive parents, would have been tantamount to legalising the situation created by them in breach of important rules of Italian law.’Footnote ¹⁷⁸ The judgment thus upheld the respondent’s abstract interest in reaffirming its law-making authority at the expense of individual rights, including the child’s best interests. This is especially unsatisfactory since a more sympathetic solution would neither have harmed others nor compromised the State’s legislative autonomy; indeed, Italian infertile couples interested in, and able to go through, foreign surrogacy arrangements constitute too narrow a category to raise ‘floodgates’ concerns.Footnote ¹⁷⁹

Both in its outcome and analysis, the Grand Chamber’s decision in Paradiso and Campanelli is a disappointing moment in ECHR jurisprudence. In an obiter, the judgment also took an unfortunate step back on parenthood under Article 8: ‘While the Convention does not recognise a right to become a parent, the Court cannot ignore the emotional hardship suffered by those whose desire to become parents has not been or cannot be fulfilled.’Footnote ¹⁸⁰ In fact, previously Evans v. The United Kingdom upheld ‘the right to respect for both the decisions to become and not to become a parent’.Footnote ¹⁸¹ Instead of an unnuanced statement on the absence of a right to become a parent, the Court ought to have merely conceded that States do not have to respect the specific means chosen by a person/couple to have a child. However, the judgment does not hinder the future expansion of reproductive rights, to the extent that the issue before the Court was limited to the treatment of de facto caregivers unrelated to the child.

The judicial attitude towards intended parents appeared less critical in the subsequent Valdís Fjölnisdóttir v. Iceland, in which, again, neither applicant was genetically related to the child, this time by design. The applicants, a married couple, had become legal parents in the United States following the use of paid gestational surrogacy and IVF treatment with donated gametes.Footnote ¹⁸² One can only speculate that the less condemnatory approach in Strasbourg was due to the respondent’s own acceptance of the de facto family ties. Indeed, even though surrogacy was unlawful and gave rise to criminal liability if it occurred in Iceland, the relationship between the intended parents and the child had not been severed; on the contrary, it was protected under foster care arrangements.Footnote ¹⁸³ The Court was therefore prepared to find that family life existed in this case, due to the long-term uninterrupted care of the child (four years), but also because the respondent did not contest the existence of family ties.Footnote ¹⁸⁴

The more limited issue before the ECtHR was whether Article 8 entitled the applicants to the recognition of parental status. According to the Court, the refusal to recognise the parent–child relationship in Finland, notwithstanding the Californian birth certificate, amounted to an interference with the intended parents’ rights; however, that interference had sufficient basis in law (a Supreme Court judgment ascertaining that the woman who gave birth is the child’s legal mother – a decision neither arbitrary nor manifestly unreasonable), and the enjoyment of family life had not been hindered by the State’s intervention. Quite the opposite, the State had taken steps to secure the bonds between the social parents and the child: a permanent foster placement was granted, followed by alternate residence and equal access arrangements after the couple’s divorce; the child had received Icelandic citizenship; and the option of adoption was available. Consequently, the non-recognition of a formal parental link based on Californian law struck a fair balance between the parties’ private interests and the general interests the surrogacy ban sought to protect,Footnote ¹⁸⁵ such as the interests of women who might be pressured into acting as surrogates and the right of children to know their natural parents.Footnote ¹⁸⁶

Despite the finding of family life, the Valdís Fjölnisdóttir decision adopted a very different test for the legitimacy of the interference when compared to cases where one of the parents had a biological link (the Mennesson matrix).Footnote ¹⁸⁷ It cemented the finding in Mennesson that the recognition of a parental link in foreign surrogacy cases is rendered necessary by the child’s right to protection of identity rights by the alignment of legal parenthood with biological parenthood.