2.1 The Right to Medically Assisted Procreation and to Control over One’s Genetic Material

However central to human experience, the right to have a genetically related child is not free from controversy in scholarly debates. For many, procreation is essential for individual self-fulfilment for a whole host of reasons: a primordial sense of ensuring the survival of the species; partaking in the miracle of creating new life; perpetuating the family’s lineage and gene pool as a responsibility towards ancestors; giving one’s parents the satisfaction of grandchildren that continue their genetic heritage; the ability to recognise oneself and identify traits of family members in one’s child; the immutable bond with a child that is an extension of oneself; the sense of gaining immortality by producing offspring; the desire to avoid the genetic lottery of adoption of unrelated children; the fear of rejection by a non-biological child in adulthood, sometimes associated with the search for the birth family. Prominent amongst these motivations is the innate, but also socially fortified, need to seek genetic continuity and permanence. As Maya Sabatello noted, ‘procreation is often regarded as a natural desire to “continue the family line” and a desire to leave a piece of oneself behind’.Footnote ¹

Others, however, equate procreation with the opportunity to experience parenthood and hence view genetic continuity as immaterial. The desire for parenthood in a social sense is also associated with ‘the need for children who will provide economic support for parents in their old age’.Footnote ² This understanding of procreation occasionally leads to unfair criticism of the right to a genetic child as devaluing social parenthood. According to Michael Boucai, promoting the geneticist ideal of procreation ‘might demean nonbiological parenthood’,Footnote ³ and human rights arguments for assisted reproduction treatment(ART) carry the risk of ‘glorifying biological reproduction at the expense of adoption’.Footnote ⁴

Nonetheless, a right cannot be negated due to the fear of offending those who value it less. To deny medical support for biological parenthood on the basis that non-biological parenthood is available is to prevent individuals from making their own judgments on the meaning of procreation. The deferral to personal choice in family formation does not diminish the importance of social parenthood; it merely recognises that individuals have different priorities. The fact that some people derive self-fulfilment from rearing children (whether or not biological) cannot justify restrictions on others’ desire to reproduce. It was reported that women mistakenly implanted with other patients’ embryos following in vitro fertilisation (IVF) underwent emergency procedures to have those embryos removed;Footnote ⁵ given the costs of IVF treatment, the low chances of an embryo becoming a foetus and the trauma of a further surgical intervention, the decision to remove unrelated embryos showcases the importance some aspiring parents attach to genetic continuity in reproduction. A pluralist, tolerant and open-minded society ought to safeguard the right to choose genetic parenthood, even if it is not a high-ranking priority for everyone.

The same reductive view of parenthood as rearing children has inspired some commentators to suggest that it is selfish and irresponsible of individuals to wish to bring new biological children into the world when there are many abandoned minors in need of a home.Footnote ⁶ However, those children are not the responsibility of reproductively challenged individuals any more than they are of individuals who can reproduce without medical assistance; by the same token, one could argue that fertile couples should refrain from reproducing as long as there are children needing a family. This would require some individuals to sacrifice their procreative rights in order to repair the damage created by others who exercised theirs irresponsibly (by reproducing while unfit or ill-equipped to become parents); the inequity of this position is obvious. Society as a whole has a responsibility for children in care (borne by taxpayers collectively); conversely, every individual is entitled to the same choice between adoption and reproduction (whether natural or assisted). The right to resort to ART in pursuit of a genetic child must be disconnected from social agendas. As Gillian Douglas aptly pointed out:

In addition, the moral interest in procreating does not hinge upon whether or not an individual or a couple requires medical assistance to do so.Footnote ⁸ Nor is the criticism of assisted conception as unnatural a sufficient justification against the provision of treatment to those who depend on it to have a biological child. As Emily Jackson noted, ‘in order to restrict other people’s reproductive freedom, these critics must do more than establish personal distaste for artificial means of reproduction’.Footnote ⁹

Medically assisted procreation remains, however, particularly controversial when it involves third-party contributions: the donation of gametes or surrogacy. There are qualitative distinctions between the functions performed by gamete donors and surrogate mothers. The surrogate’s role ‘involves the nurture of the child for nine months followed by a painful and risky delivery’.Footnote ¹⁰ However, both techniques presuppose the participation of an individual who does not intend to reproduce but merely to facilitate another’s reproductive plans. They raise the question of whether the right to respect for private and family life requires the State to facilitate genetic or gestational assistance to procreate and to allocate parenthood according to the parties’ intentions.

To date, the European Court of Human Rights (ECtHR) has proved cautious when interpreting obligations related to medically assisted reproduction, affording States a wide margin of appreciation in this sensitive area:

Nevertheless, the Court was prepared to uphold a number of minimal guarantees regarding access to ART and relationships created through recourse to ART. These will be examined in the following sections.

2.2 Gamete Donation: Reconciling Genetic Parenthood and Free Choice of Partner

While Article 8 protects ‘the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose’,Footnote ¹³² it does not entitle them to the choice of any reproductive method. A highly contentious technique is heterologous fertilisation, involving the use of donated gametes, as opposed to homologous artificial insemination or IVF procedure, involving the use of only gametes from the aspiring parents. According to Douglas, the idea of assisted insemination with donor is resisted on two related grounds: first, ‘traditional sexual morality’, in that ‘the use of donor semen introduces a third party into the marital relationship’, and second, the fact that it ‘introduces a stranger’s genes into the blood line of the man’s family, thus spoiling the line of succession’.Footnote ¹³³ Some authors support an absolute prohibition or narrow eligibility for heterologous fertilisation (limited to certain forms of infertility or genetically transmissible diseases), because the attribution of parenthood to the non-biological intended parent (the mother in case of ova donation, or the father in case of sperm donation) affects the certainty of affiliation and the child’s identity.Footnote ¹³⁴

Arguments based on the certainty of affiliation and the child’s identity appear weak to the extent that the law makes no effort to ensure the accuracy of birth records, that is, it allows registration by the alleged parents without the submission of genetic proof, and it presumes the husband of the woman who gives birth to be the father. The emphasis on the certainty of affiliation is also at odds with the availability of paternity challenges, while the existence of bars on such proceedings calls into question the prevalence of the child’s right to know the biological truth. Additionally, the law views neither the certainty of affiliation nor identity rights as impaired by adoption, even though the new birth certificate reallocates parenthood and does not reflect the child’s parentage. In Odièvre v. France, the ECtHR accepted that the adopted child’s right to know is not an absolute one and can be limited by the birth mother’s right to confidential birthing.Footnote ¹³⁵ The adoptive parents’ rights also prevail over the child’s right to know, since the law grants them discretion whether to reveal the circumstances of the child’s arrival into the family. If the attribution of legal parenthood to individuals who are not the genetic parents is not seen as detrimental to the child’s sense of identity, it cannot be an insurmountable objection to heterologous fertilisation. Furthermore, the right to knowledge of one’s origins could be promoted through access to information about the donor; a complete ban on the practice of gamete donation, going beyond the objective of safeguarding identity rights, is arguably a disproportionate interference with prospective parents’ rights. In fact, for some individuals, the use of donor gametes is the only way to reconcile their choice of partner with the desire to have a biological child. A person whose spouse is infertile should not have to choose between ending the marriage and renouncing biological parenthood. The law could, for instance, allow the woman to be treated with donor sperm alone (rather than as part of a couple) and permit her husband to adopt the child; however, it is doubtful whether the child’s welfare is better protected by step-parent adoption than parenthood ab initio, as the latter facilitates the full integration into the family since birth.

The ECtHR examined the issue of heterologous fertilisation in S.H. and Others v. Austria, a case challenging the ban on the use of donated gametes for IVF treatment and the absolute prohibition of ovum donation. The impugned legislation permitted the unification of ovum and sperm in vitro only if they both proceeded from the intended parents, whereas it allowed sperm donation for in vivo fertilisation.Footnote ¹³⁶ The applicants were two married couples wishing to conceive through IVF: one couple needed a sperm donor, while the other needed donated ova. They complained in Strasbourg that the impossibility of conceiving a child genetically related to one parent – due to the law permitting only homologous IVF, using both male and female gametes from the spouses – breached their Convention rights.

The initial Chamber judgment held that the right of couples to procreate by availing themselves of ART fell within the ambit of Article 8, the decision to embark upon such treatment being an expression of the right to private and family life.Footnote ¹³⁷ The Chamber rejected the idea that the unease of certain sections of the population with the new techniques can justify the interference with other individuals’ rights; in fact, ‘concerns based on moral considerations or on social acceptability are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique’.Footnote ¹³⁸ While accepting as legitimate the aim of avoiding the risks of exploitation of women from poor backgrounds or the abuse of the technique for genetic selection, the Chamber found that the prohibition of ova and sperm donation for IVF is not ‘the only or the least intrusive means of achieving the aim pursued’.Footnote ¹³⁹ A regulatory framework, as opposed to a total ban, would have been a proportionate response (the decision cites the existing prohibition on the remuneration of gamete donation).Footnote ¹⁴⁰ As regards the concerns over the division of motherhood between biological/gestational/social aspects and legal certainty, the Court noted that the family law framework already accommodated ‘unusual family relations’, ‘which do not follow the typical parent–child relationship based on a direct biological link’ (the institution of adoption).Footnote ¹⁴¹ The conflict between the interests of donors requesting anonymity and the children’s right to know their genetic origin, which is not an absolute one,Footnote ¹⁴² was similarly rejected as an insufficient justification.Footnote ¹⁴³ The Chamber concluded that the prohibition violated Article 14 taken in conjunction with Article 8, because the different treatment of couples who needed ova/sperm donation for IVF and those who could use sperm donation for in vivo fertilisation had no objective and reasonable justification and was disproportionate.Footnote ¹⁴⁴

Regrettably, the Grand Chamber reversed the Chamber decision, finding that Austria had not exceeded its margin of appreciation as regards the regulation of gamete donation. It accepted the precautionary principle as a justification for the prohibition, namely the unforeseeable consequences of allowing a dissociation between genetic and legal parenthood. It reasoned that, given the fast development of artificial procreation and the difficulties in anticipating the effects of a regulatory measure, it was ‘understandable that the States find it necessary to act with particular caution’.Footnote ¹⁴⁵ The Court accepted further unconvincing justifications for the ban on ovum donation, such as avoiding the possibility that two women could claim to be the biological mother of a child.Footnote ¹⁴⁶ The very practice of gamete donation is premised on the fact that donors are not treated as legal parents and hence on the distinction between donation for the treatment of others and self-reproduction. Moreover, the law already allowed a person to acquire parental status without being the child’s genetic parent, through adoption and artificial insemination with donor sperm in cases of male infertility.Footnote ¹⁴⁷ According to the respondent, the use of donor sperm for in vivo fertilisation was lawful because that technique was already in practice and, since it did not require a medical professional, any prohibition would have been unenforceable. Justifications based on practice or tradition alone have been rejected elsewhere in ECHR case law as inadequate.Footnote ¹⁴⁸

Rosamund Scott has argued that ‘in SH the Grand Chamber diminished the function of donated gametes as treatment and portrayed their use as aligned with choice, thereby disregarding the applicants’ underlying treatment needs’.Footnote ¹⁴⁹ While treatment and choice are not mutually exclusive, the Court failed to acknowledge that, for some couples, the choice to procreate is intrinsically related to the availability of treatment enabling them to overcome infertility issues. The Chamber’s focus on the different needs of couples disadvantaged by the ban on gamete donation for IVF was closer to the Inter-American Court’s position in Artavia Murillo v. Costa Rica, which viewed infertility in the context of reproductive health, as a disability requiring measures of protection. Another lacuna in the Grand Chamber’s judgment, also overlooked in the Chamber proceedings and the literature, is the insufficient consideration of the fertile person’s right to become a genetic parent, the enjoyment of which is disproportionately affected if it requires divorce and repartnering.

Additionally, the Grand Chamber placed excessive emphasis on the lack of a common European approach to gamete donation and the wide margin of appreciation retained by States.Footnote ¹⁵⁰ Although it acknowledged a ‘clear trend in the legislation of Contracting States towards allowing gamete donation’ and hence ‘an emerging European consensus’, it unduly raised the bar for evolutive interpretation, adducing that said consensus was not ‘based on settled and long-standing principles’ and hence it did not ‘decisively narrow the margin of appreciation’.Footnote ¹⁵¹ The ‘settled and long-standing’ qualification appears inconsistent with the Court’s case law. While the practice in a small number of jurisdictions was considered insufficient to establish consensus (e.g. in Schalk and Kopf v. Austria on same-sex marriage),Footnote ¹⁵² an enduring tradition was not required. On the contrary, in Marckx v. Belgium the Court relied on legislative reforms still in progress, noting that ‘the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve’.Footnote ¹⁵³ In Goodwin v. The United Kingdom, the Court ‘attache[d] less importance to the lack of evidence of a common European approach … than to the clear and uncontested evidence of a continuing international trend’.Footnote ¹⁵⁴ Against this background, ‘a clear trend’ across the ECHR membership in favour of gamete donation for IVF should have satisfied the test for consensus. The superimposition of an additional criterion attracted justified criticism from the dissenters, for whom a high threshold for consensus is ‘potentially extending the States’ margin of appreciation beyond limits’.Footnote ¹⁵⁵ Moreover, requiring long-term practice to establish European consensus delays the development of human rights standards in an era of fast advances in medical technology.

Equally problematic is the Court’s reasoning that the restriction was mitigated by the option left to couples needing gamete donation to travel abroad and receive this type of treatment in jurisdictions where it was legally available. On the one hand, the respondent’s reliance on ‘procreative tourism’ to defend the proportionality of the ban undermines its claim that the restriction was rendered necessary by the community’s core ethical values.Footnote ¹⁵⁶ Couples seeking ova donation, to allow a man to become a genetic father and his wife to experience gestational motherhood, are a very small section of the population. As any exiguous minorities with an unpopular cause (much like prisoners in Dickson v. The United Kingdom), they run the risk of unempathetic majorities being dismissive of procedures on which they themselves do not depend. The ECtHR can correct the imbalance of a situation in which individuals who are not affected by an issue make decisions impacting those who are. On the other hand, as the IACtHR recognised in Artavia Murillo, treating overseas IVF as a solution discriminates against couples based on their financial status.

Albeit disappointing in its deference to national regulation, the Grand Chamber’s ruling in S.H. v. Austria had the merit of consolidating the principle that Article 8 protects the right to make use of medical advances for procreation. This contribution is highlighted by the contrast with the ultra-conservative Separate Opinion of Judge De Gaetano, for whom all assisted reproduction techniques (ARTs) are contrary to human dignity and ‘the “desire” for a child cannot … become an absolute goal which overrides the dignity of every human life’.Footnote ¹⁵⁷ More moderate objections to ART in the literature do not view human dignity as incompatible with all non-natural procreation, but only with commercial or eugenic abuses of ARTs.Footnote ¹⁵⁸ Judge De Gaetano’s opinion also overlooks the fact that the reproductive function of the human body is not less worthy of medical assistance than any other function; therefore, ART cannot be condemned any more than other medical treatment – for example, organ transplant – which seeks to offer a better quality of life.

The Court’s preference for categorising the ban on gamete donation for IVF as an interference is also significant,Footnote ¹⁵⁹ especially since it stressed the importance of keeping under review the law’s response to fast-moving scientific developments in the field of artificial procreation. As with previous judgments containing future-oriented obiter dicta (e.g. on transgender rights in Rees v. The United Kingdom and Cossey v. The United Kingdom),Footnote ¹⁶⁰ the Court noted that this is an area in which ECHR standards may change subject to further domestic developments: ‘Even if it finds no breach of Article 8 in the present case, the Court considers that this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States.’Footnote ¹⁶¹ This suggests that a different conclusion on heterologous fertilisation may be reached in the future. Indeed, Christine Goodwin v. The United Kingdom has demonstrated the Court’s willingness to revisit its position and condemn a State persisting in its restrictive approach to evolving rights.Footnote ¹⁶²

Significantly, the Grand Chamber passed judgment in S.H. and Others v. Austria well over a decade after the applicants’ complaint before the Austrian Constitutional Court, and it expressly confined its findings to the prevailing circumstances at the time of the domestic proceedings. In particular, it emphasised that the judgment was not reflective of ECHR standards at the time of the ruling:

This caveat suggests that Convention standards at the time of the S.H. and Others decision may have already evolved so as to require States to permit gamete donation for IVF treatment.

2.3 Posthumous Parenthood: Deferred Procreation and Respect for Privacy beyond Death

2.4 Recognition of Legal Ties Following Overseas Surrogacy Arrangements: Respect for Biological Parentage

One of the most controversial aspects of the right to become a genetic parent is the recourse to surrogacy arrangements. The literature is highly divided on the subject. Some scholars see surrogacy as a legitimate alternative for aspiring parents afflicted by infertility, an exercise of procreative choice and an expression of bodily autonomy for the surrogate; conversely, others condemn surrogacy for the alleged commodification of the woman’s body; the exploitation of vulnerable, underprivileged women; the commercialisation of babies (especially in the case of remunerated surrogacy services); the psychological trauma of the surrogate relinquishing the baby; and the endangerment of the welfare of the children born as a result of such agreements (inter alia the emotional impact of being abandoned by the ‘mother’ at birth).Footnote ¹⁹⁴

Although, in principle, such objections can form the basis of an interference with aspiring parents’ rights, they do not fare well under close scrutiny. The moral objection that ‘the surrogate is seen as no more than an incubator for the child’Footnote ¹⁹⁵ loses strength if a comparison is drawn with organ (e.g. kidney) or bone marrow donation, which are not seen as exploitative or morally reprehensible, and in which the donor is not treated as a means to an end (their status as donor does not mean that their worth is reduced to a source of transplant organs); nor are human organs seen as commodified by that process. The same medical risks are associated with organ donation, and the same incentive is created for less-well-off members of society to act as donors. If surrogacy is appropriately regulated, surrogates are assessed for (physical and psychological) risk and rejected if the risks are too high, in the same way as living donors of organs are; indeed, other services involving physical labour that poses risks are deemed ethically permissible (e.g. nursing).Footnote ¹⁹⁶ Allowing individuals to help the medical treatment of others is not more debasing in case of reproductive, as opposed to other, health issues. Leslie Francis has warned against the hasty assumption that kidney or liver donation is acceptable insofar as it is a life-saving measure, whereas carrying a child for another person is not: ‘To defend this distinction … is to rely on contested judgments about whether assisted reproduction is a sufficiently weighty purpose to override the risks it might impose.’Footnote ¹⁹⁷ While most critics of surrogacy emphasise the risks of harm to the surrogate, Emily Jackson has aptly drawn attention to the vulnerability of the commissioning parents, especially where the law creates an opportunity for extortion (e.g. where it gives the surrogate absolute freedom to withdraw from the contract) or offers no remedy if the arrangement breaks down.Footnote ¹⁹⁸

Objections based on the transactional nature of paid surrogacy, often likened to the sale of children and prostitution, overlook the economic motivation underlying adoption. Deech and Smajdor have pointed out that ‘financial considerations are frequently a primary factor in motivating mothers to give their children up for adoption’,Footnote ¹⁹⁹ namely ‘their future lives are relieved of the financial burden that the child would have represented’.Footnote ²⁰⁰ Additionally, studies have shown that, although financial gain is an important incentive for surrogates, the factors underlying that decision are complex, including sympathy with childless couples, the desire to re-experience pregnancy and childbirth without the responsibility of rearing the child, the desire for enhanced self-worth, and ‘attempts to resolve feelings associated with previous reproductive losses’.Footnote ²⁰¹

Nonetheless, some authors have gone so far as to consider that commercial surrogacy may fall under Article 2 of the 2000 Optional Protocol to the UNCRC on the sale of children, child prostitution and child pornography.Footnote ²⁰² This provision prohibits the sale of children, defined as ‘any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration’. Nevertheless, the interpretation of this provision ‘in its context’ (as required by Article 32 of the Vienna Convention on the Law of Treaties)Footnote ²⁰³ must take into account Article 3(a)(i), which lists the purposes of transfers of children deemed unlawful: ‘sexual exploitation’, ‘transfer of organs of the child for profit’, ‘forced labour’. The purpose of surrogacy – enabling infertile couples to become parents through third-party gestation – is too remote from the text and spirit of Article 3(a)(i) for the situation to fall within the purview of the Protocol. Furthermore, Katherine Wade has aptly noted that the purpose of surrogacy is non-exploitative, that the child is born to parents capable of providing adequate care and that the intended parents do not acquire ownership over the children.Footnote ²⁰⁴ Supporting a similar conclusion, Paula Gerber and Katie O’Byrne have pointed out that compensated surrogacy arrangements are not premised on a transfer of any entitlement over the child, but rather on ‘an allocation of responsibility between the parties to the arrangement as to the care of the child at different points in time, with the aim of bringing the child into its intended family’.Footnote ²⁰⁵ It is also worth recalling that the 2018 Report of the Special Rapporteur on the sale and sexual exploitation of children – mandated by the UN Human Rights Council to investigate these issues – while expressing concerns over the dangers of improper regulation of surrogacy does not suggest that either altruistic or commercial surrogacy are incompatible with the Optional Protocol to the UNCRC.Footnote ²⁰⁶

Furthermore, the object of the transaction in commercial surrogacy is not the child but the services necessary to complete the process of bringing the child into the world: hosting the embryo/allowing the development of the foetus and delivering the child. Gamete donors lend remunerated support in the early stage of the reproductive process without being seen as prostituting themselves or ‘selling a baby’; similarly, the surrogate participates in the later stages, by allowing the use of her uterus. According to Robin Mackenzie, the social acceptability of gamete donation ‘has hinged upon analogies made with praiseworthy altruistic and socially valued activities such as blood or organ donation and medico-surgical procedures’.Footnote ²⁰⁷ Lisa Rubin and Aliza Phillips perceptively noted the duplicity of the language distinguishing between gamete ‘donation’, which actually involves a costly transaction, and surrogacy:

In gestational surrogacy, where genetic reality and the parties’ intentions overlap, the autonomy rights of the surrogate and the intended parents should require State authorities to recognise the arrangement and register the birth accordingly. Indeed, ‘the activities involved in surrogacy arrangements, impregnation, child-birth and the formation of a family, might be regarded as quintessentially private decision-making protected by human rights’.Footnote ²⁰⁹ Empirical studies conducted in jurisdictions permitting commercial surrogacy have shown the parties involved in surrogacy arrangements ‘as capable of protecting their own interests and making responsible and realistic judgments’, so that ‘fears of exploitation and commodification’ are not borne out by the evidence.Footnote ²¹⁰ It has also been noted that the liberalisation of surrogacy, albeit viewed as anti-feminist by those concerned by ‘the commodification and control of women’s bodies’, is for others eminently feminist; in fact, ‘any attempt to restrict surrogacy is paternalistic and represents a threat to reproductive autonomy’.Footnote ²¹¹

Speculative objections to surrogacy include the concern that, upon learning of the circumstances of their conception, children may experience ‘emotional insecurity’ knowing that they were ‘given away by the carrying mother – or sold’.Footnote ²¹² On the contrary, for surrogacy-born children, the knowledge that they were very much wanted, and that their parents went to great lengths to conceive them, is more likely to reinforce the security of a loving family environment. The aforementioned objection also assumes that children perceive the surrogates as their ‘mothers’, hence the idea of abandonment, which is certainly mistaken in cases of gestational surrogacy. Even in traditional surrogacy cases, it is improper to speak about abandonment when, from the outset, the woman carrying the child did not intend to procreate.

To date, surrogacy-related Strasbourg litigation has focused on existing children born as a result of (usually overseas) surrogacy arrangements, rather than on access to surrogacy. The first case, however, concerned the treatment of private organisations facilitating surrogacy arrangements. In Lavisse v. France (‘Les Cigognes’ case),Footnote ²¹³ the authorities had declared illegal an association assisting infertile couples in contacting women willing to act as gestational mothers. Although the case revolved around Article 11 ECHR (the interference with the applicant’s right to freedom of association), the analysis touched upon Article 8 issues. The Commission held that the interference pursued the legitimate aim of preventing the offence of inciting the abandonment of babies at birth. States were found to enjoy wide discretion in an under-regulated and divisive area such as surrogacy, and given the need to strike a fair balance between the collective and individual rights concerned, the interference was ‘necessary in a democratic society’.

The Strasbourg response is more nuanced when at stake is not the advertisement of surrogacy services but actual parent–child relationships arising from such agreements. Most applications have revolved around the recognition, in jurisdictions prohibiting surrogacy, of legal effects flowing from surrogacy agreements lawfully concluded abroad. In Mennesson v. France and Labassee v. France,Footnote ²¹⁴ the applicants were two married heterosexual couples who had resorted to gestational surrogacy in the United States (the Mennessons in California and the Labassees in Minnesota) and their respective children. In both cases, the procedure had involved embryos created through IVF using the husband’s gametes and donor ova. The California and Minnesota courts had ordered prenatally that the applicants were to be considered parents once the children were born, and the birth certificates were issued accordingly. The French authorities had refused to register the births in accordance with the children’s US birth certificates, on the basis that recording the commissioning parents as the children’s parents would give effect to agreements that were null and void in France insofar as contrary to public policy.Footnote ²¹⁵

Significantly, Article 8 was found applicable under both its ‘private life’ and ‘family life’ limbs. ‘Family life’, a notion depending on the reality of the relationships between the parties, was found engaged, insofar as the commissioning parents had raised the children since birth and they lived together in a manner indistinguishable from the usual understanding of family life; ‘private life’ was said to encompass social identity and affiliation, hence the direct link between the surrogate-born children’s private life and the legal determination of their affiliation.Footnote ²¹⁶ The Court agreed that the refusal to recognise the parent–child relationship interfered with both the children’s and the adults’ rights.Footnote ²¹⁷ However, the Court accepted that the measure pursued the legitimate aim of protecting public health and the rights of others (children, surrogate mothers) by deterring nationals from engaging abroad in practices contravening domestic public policy.Footnote ²¹⁸ The Court also considered the State’s wide margin of appreciation as regards the lawfulness of surrogacy and the recognition of such arrangements when lawfully concluded abroad, given the absence of European consensus on the matter.Footnote ²¹⁹ While recognising the daily difficulties that could arise from the lack of registration (e.g. having to present the US documents accompanied by an official translation to demonstrate the relationship), the Court noted that the applicants were not prevented from leading a family life together in France.Footnote ²²⁰ There was no discussion of the obligation to allow those concerned – at least the biological fathers and their children – to ‘lead a normal family life’, as required in Marckx v. Belgium in relation to a biological mother and her child.Footnote ²²¹ For the Court, the interference with the parents’ family life was not disproportionate; in fact, the practical difficulties they faced as a result of the refusal of recognition were not so egregious as to outweigh the public interests at stake.Footnote ²²²

Conversely, the Court found that the respondent State’s discretion as regards the children’s Article 8 rights was narrowed by several factors. First, ‘an essential aspect of the identity of individuals is at stake where the legal parent–child relationship is concerned’ and hence ‘the margin of appreciation … needs to be reduced’.Footnote ²²³ The refusal to register the foreign birth certificates deprived the children of the recognition of parentage in respect of the biological parent (the father); given ‘the importance of biological parentage as a component of identity’, this was not in the children’s best interests.Footnote ²²⁴ Second, for the children, the consequences of the non-recognition were far-reaching, adversely impacting their identity rights, the acquisition of French nationality (despite the fact that their biological fathers were French) and inheritance rights. The Court noted the misalignment between the acceptance that the children were related to the applicants under US law and the denial of that status under French law, which both deprived them of the opportunity to become French citizens and undermined their identity as full members of French society.Footnote ²²⁵ The French authorities had not safeguarded the children’s best interests, which should be the primary consideration whenever decisions concerning children are made.Footnote ²²⁶ Moreover, while the parents were aware of the consequences of their actions when they embarked upon surrogacy abroad, the law greatly affected the children as well.Footnote ²²⁷ The Court thus applied a stricter proportionality test to the interference with the children’s rights, insofar as the latter were not responsible for the parents’ choices, and found that the respondent had overstepped its margin of appreciation when regulating the consequences of foreign surrogacy. The judgment, therefore, unanimously found a violation of the children’s Article 8 rights:Footnote ²²⁸ the refusal to recognise the parent–child relationships lawfully established overseas between children born through surrogacy and their commissioning parents breached the children’s right to respect for their private life.

The judgment is particularly emphatic about ‘the need to strike a fair balance between the interest of the community … and the interest of the applicants – the children’s best interests being paramount – in fully enjoying their rights’.Footnote ²²⁹ A parallel can be drawn between the Court’s case law on children born through overseas surrogacy, in circumstances where the commissioning parents’ national law prohibits it, and its case law on children’s rights in unlawful immigration cases. As held in Jeunesse v. The Netherlands, in immigration decisions, the children’s best interests must be afforded significant weight;Footnote ²³⁰ general immigration policy considerations are not sufficient to justify a measure resulting in hardship for the children (if the primary carer is returned to the country of origin or if the entire family must relocate abroad).Footnote ²³¹ While parents crossing borders illegally cannot face the destination States with a fait accompli and expect the authorities to uphold the family life established after an illegal settlement in the country, children at risk of deportation cannot be held responsible for the parents’ illegal conduct.Footnote ²³² Similarly, in Mennesson, the Court accepted that the respondent ‘may wish to deter its nationals from going abroad to take advantage of methods of assisted reproduction that are prohibited on its own territory’;Footnote ²³³ however, the law was also penalising the children:

Lydia Bracken also remarked that laws penalising surrogate-born children fall foul of the international obligation, enshrined in Article 2(2) of the UNCRC,Footnote ²³⁵ to protect children against ‘all forms of discrimination or punishment’ based on their parents’ ‘activities’.Footnote ²³⁶

The case of Laborie v. FranceFootnote ²³⁷ gave the Court an opportunity to consolidate its jurisprudence in Mennesson v. France and Labassee v. France (which had been followed in Foulon and Bouvet v. France in relation to single commissioning fathers).Footnote ²³⁸ The applicants were a French married couple who had entered into a lawful surrogacy agreement in Ukraine, the children being genetically related only to the father. The registration of the birth certificate had been refused on the ground of incompatibility with public policy, insofar as the surrogacy arrangement was null and the birth certificate was inaccurate as regards maternal affiliation. The Court concluded again that the non-recognition of the parent–child relationship did not breach the family life of the commissioning parents or the children but breached the children’s privacy rights. The Court limited its analysis to a referral to its previous rulings, indicating that the factual matrix was similar and there was no reason to depart from the principles already established.Footnote ²³⁹ This line of jurisprudence marks a modest ideological triumph, but an important practical victory, for families formed through overseas surrogacy arrangements. ECHR States can no longer deny legal recognition to the relationship between a biological parent and the surrogate-born child; this would violate children’s right to the protection of not only their social identity as members of the community where they reside but also their genetic identity, defined by the link with biological parents.

The importance of genetic ties also pervades the 2019 Advisory Opinion No. P16-2018-001 on the recognition of the intended mother of a surrogate-born child,Footnote ²⁴⁰ in principle confined to a situation where the child was conceived using the intended father’s sperm and donated ova. In addition to requiring the recognition of the non-biological commissioning mother’s relationship with the child through an expedited procedure (not necessarily the transcription of the foreign birth certificate), the Court suggested in an obiter dictum that, where the embryo was created with the intended mother’s ova and donor sperm, ‘the need to provide a possibility of recognition of the legal relationship between the child and the intended mother applies with even greater force’.Footnote ²⁴¹ Problematically, the Court’s wording left States a spectrum of options, rather than mandating registration as the legal mother and hence parental status ab initio.

A subsequent ruling confirmed that States meet their Article 8 obligations where legal affiliation with the commissioning genetic mother is established through step-parent adoption. D. v. FranceFootnote ²⁴² concerned the refusal to record in the French civil register the full details of the Ukrainian birth certificate of a child born through gestational surrogacy, designating the intended genetic mother as the legal mother and her husband as the legal father. Under French law, a presumption of accuracy and direct effect applied to foreign birth certificates as regards the legal father (save for situations of demonstrable fraud),Footnote ²⁴³ and therefore the husband’s paternity was not queried (while the applicants claimed that they were both genetic parents,Footnote ²⁴⁴ this did not appear tested). Conversely, the authorities refused to register the mother’s details, insofar as she had not given birth to the child. In Strasbourg, the applicants complained that the authorities had breached the child’s Article 8 right to respect for her private life and had discriminated against her on the grounds of birth.Footnote ²⁴⁵

The parties and the Court agreed that the refusal to register the intended mother as the legal mother constituted an interference with the child’s right to private life, carried out in accordance with the law.Footnote ²⁴⁶ For the Court, the protection of the interests of the child and the surrogate mother and the policy of discouraging surrogacy (a practice which was unlawful in France) fell within the legitimate aims in Article 8(2).Footnote ²⁴⁷ The application did not appear to substantiate the claim that the measure failed to protect the child or the surrogate;Footnote ²⁴⁸ however, the surrogate’s disinterest in acting as a parent and the child’s interest in preserving the relationship with the genetic mother should have been discussed. As to the necessity of the interference, the Court recalled that the failure to recognise the legal relationship between a child and the intended biological father violated Article 8, but sought to reinterpret the authorities.Footnote ²⁴⁹ It maintained that Mennesson/Labassee did not require the State to establish legal ties between the child and the father through the transcription of the foreign birth certificate; rather, respect for the child’s private life had to be ensured through an effective and speedy mechanism for establishing legal affiliation, but not necessarily through the transcription of the birth certificate. Adoption, a procedure with an average duration of 4.1 months according to the government, was deemed equally satisfactory. The Court further noted that, as indicated in its Advisory Opinion No. P16-2018-001, adoption produced similar effects to registration of the foreign birth details and adequately recognised the legal relationship between the child and the intended (non-genetic) mother.Footnote ²⁵⁰ In attempting to rationalise its decision that no violation of Article 8 had occurred, because the impugned decision was within the respondent’s margin of appreciation, the Court took a regrettable step back from the advances made in Mennesson and Labassee. Its restatement of the previous jurisprudence unhelpfully downplays genetic affiliation, requiring States to ensure some avenue for establishing legal ties between the child and the commissioning genetic parent.Footnote ²⁵¹

D. v. France further found no violation of Article 8 read in conjunction with Article 14 in relation to the different treatment of French children born abroad through surrogacy, when compared to other French children born abroad, as regards the means of recognition of legal ties with the genetic mother. For the Court, adoption achieved the same result as the registration of the foreign birth details, and judicial scrutiny of the circumstances was necessary to protect the interests of the child.Footnote ²⁵² To some extent, the D. v. France anomaly (and the step backwards from Mennesson) can be explained by the Court’s unease with split motherhood and its deference to States’ order of priority between gestational and genetic motherhood. However, where the surrogate is not biologically related to the child, accepted to carry the foetus for the intended parents and consented to the latter’s treatment as the legal parents, there is no compelling reason to depart from the general principle that the child’s identity rights require the recognition in law of the genetic links with the commissioning mother. This would not compel States to revisit the domestic meaning of ‘mother’; it would merely require them to accommodate an agreement lawfully entered into abroad with the consent of all relevant parties, lest they disadvantage the surrogate-born child. The recognition of maternal affiliation also finds support in the effectiveness of social ties and in the legal ties in the jurisdiction where the child was born.

The procedural discretion enjoyed by ECHR States vis-à-vis the recognition of parent–child relationships established through a foreign surrogacy was confirmed in D. and Others v. Belgium.Footnote ²⁵³ The application regarded the temporary separation (almost four months) of a child born through surrogacy in Ukraine from his Belgian parents. This separation arose from the refusal by Belgian authorities to issue the child a Belgian passport or other travel documents permitting entry into the country, based on the Ukrainian birth certificate, which identified the applicants – a Belgian married couple – as his parents. The Court reasoned that the applicants wished to look after the child since his birth and had taken action to establish an effective family life; it recalled that, despite the separation, ‘intended family life’ is also covered by Article 8.Footnote ²⁵⁴ The Court drew on its jurisprudence regarding adoptive parents who are not yet living with their adopted children; spouses who have not yet set up home together after the marriage ceremony; and the potential family life that natural fathers may expect to develop with children born out of wedlock after a relationship breakdown. The application of these principles to foreign surrogacy cases is particularly useful where the parents have not had a chance to establish an effective family life with the child. The protection of intended family life allowed the Court to analyse the separation in D. and Others as an interference with the applicants’ right to respect for their family life.Footnote ²⁵⁵

The Court conceded, however, that the interference pursued the legitimate aim of preventing crime, specifically the traffic in human beings, by verifying compliance with Belgian and Ukrainian legislation.Footnote ²⁵⁶ There was also a brief reference to the protection of the ‘rights of others’ – the surrogate and the child.Footnote ²⁵⁷ It further held that ‘the Convention cannot require States Parties to authorise the entry into their territory of children born to a surrogate mother without prior legal verifications on the part of the national authorities’Footnote ²⁵⁸ and found that the length of the proceedings had not been ‘unreasonably long’.Footnote ²⁵⁹ The Court stressed the foreseeability of the procedure required for the recognition of the family relationship and the child’s ability to enter the countryFootnote ²⁶⁰ as well as the applicants’ partial contribution to the delay.Footnote ²⁶¹ Nor was the government responsible for the applicants’ difficulties in remaining in Ukraine with the child while proceedings were pending before the Belgian authorities.Footnote ²⁶² The application was dismissed as manifestly ill-founded, a conclusion perhaps unwarranted since the separation stemmed from the non-recognition of a valid foreign document.

All the surrogacy cases considered by the Court until 2022 focused on the effects of lawful overseas surrogacy arrangements. The recent A.L. v. France judgment confirmed that, even when created through an unlawful domestic surrogacy agreement, the biological link between the intended parent and the child remains protected by Article 8.Footnote ²⁶³ The domestic case at the origin of the Strasbourg complaint was a triangular paternity dispute after a failed surrogacy arrangement. The applicant (and his male companion) had been deceived by the surrogate mother, who had claimed that the child had died, whereas she had entrusted him to another couple in exchange for payment; that couple had recognised and raised the child since birth. Unlike Mennesson and similar applications, the A.L. complaint was introduced exclusively on behalf of the genetic intended father.Footnote ²⁶⁴ To that extent, it is the first judgment upholding the parent’s, rather than the child’s, right to private life in the context of surrogacy.

The Court found a breach of Article 8 due to the unreasonable delays in the conduct of paternity proceedings, which irreversibly affected the relationship between the child and his biological father; in fact, due to the passage of time, the recognition of affiliation and the transfer of care from the social parents to the biological father were no longer in the child’s best interests. There is an evident parallel with Keegan v. Ireland,Footnote ²⁶⁵ although in that case the planned conception by a betrothed couple also engaged ‘family life’. With that distinction, the principle upheld in A.L. is reminiscent of Keegan. Although surrogacy was illegal in France, and the father had been found guilty of incitement to abandon a child,Footnote ²⁶⁶ the Court held that the time elapsed since the introduction of the paternity action did not meet the special diligence standard required under Article 8; in fact, in paternity cases, such delays are likely to predetermine the outcome of the case (the child was four months old when paternity proceedings were instituted and was six years old by the time the case was decided).Footnote ²⁶⁷

The ECtHR was satisfied that the domestic courts’ decision was primarily motivated by the child’s best interests, which included a right to a stable home with the family that had raised him since birth, especially in light of the passage of time.Footnote ²⁶⁸ Commendably, it rejected the respondent’s contentions that the delays were caused by the complexities of the case and that the burden was on the individual litigant to use the tools available to expedite proceedings.Footnote ²⁶⁹ There are, however, important arguments in the applicant’s submissions that deserved greater attention. One of the reasons for the father’s lack of success in domestic proceedings was the authorities’ reliance on the nullity of surrogacy contracts. The applicant appropriately denounced the inconsistency of this approach with (a) the recognition of natural affiliation in foreign surrogacy cases, (b) the determination in criminal proceedings that he was the father and (c) the courts’ treatment of the social parents’ conduct (purchasing a baby for EUR 15,000) as less objectionable than his entering a surrogacy agreement to have a biological child.Footnote ²⁷⁰ For future cases, it would have been desirable for the Court to address these submissions and unequivocally clarify that the biological link between the commissioning father and the child must be protected in all surrogacy cases, whether foreign or domestic, lawful or unlawful. Indeed, if the domestic surrogacy contract is null, the law should allocate paternity according to biology, recognising the commissioning father as a legal parent not by virtue of the contract but based on genetic reality.Footnote ²⁷¹ By focusing on the procedural breach of Article 8 (excessive length of proceedings), the Court missed the opportunity to advance the understanding of substantive obligations. In cases where the surrogate sells the baby to another couple, there is no public policy rationale for allowing an unmitigated illegal situation to prevail over biological ties, corroborated by intended family life; Article 8 should require the swift return of the child to the biological parent.

Different considerations may apply when the surrogate is the genetic mother and wishes to raise the baby herself. Although A.L. v. France was a case of traditional surrogacy, the mother did not intend to act as a social parent and there was no conflict of rights between two genetic parents. Even where the surrogate reconsiders and wishes to keep the child, regardless of whether or not she is requested to surrender the baby (based on contract, estoppel or other doctrines), the biological father’s rights should encompass at least the recognition of affiliation and contact with the child. In fact, but for the surrogacy agreement, the father would not have impregnated the surrogate; moreover, he never agreed to act as a sperm donor for her and her husband. Arguably, the residence dispute should also be resolved in favour of the father; having to choose between two genetic parents with equal rights, the private agreement should tip the balance to the father’s advantage. There should be, a fortiori, little hesitation as to the recognition of the genetic father when the surrogate reneguing on the agreement is not a genetic parent herself.

This was the factual matrix before the Court in H. v. The United Kingdom,Footnote ²⁷² a case regarding a failed gestational surrogacy arrangement in a jurisdiction permitting surrogacy. The application was brought by a surrogate-born child whose birth certificate indicated as parents the genetically unrelated surrogate and her husband. Following the breakdown of the surrogacy arrangement, and given the veto right of the surrogate and her husband under domestic law as regards the issuing of parental orders to the intended parents, a court had placed the child with the commissioning couple, who also received shared parental responsibility; the surrogate and her husband continued to be the legal parents and could exercise limited parental responsibility and contact.Footnote ²⁷³ The case was essentially an identity case: the applicant complained that the registration of the surrogate’s husband as the father on her birth certificate (instead of her genetic father), not open to legal challenge, breached her right to respect for her private life.Footnote ²⁷⁴

Disappointingly, the Court was satisfied that the child ‘ha[d] not been wholly deprived of a legal relationship with’ the genetic father, in that she resided with him, had taken his surname and he was able to make parenting decisions.Footnote ²⁷⁵ The low threshold for the right to establish one’s identity is astounding: ‘After all, there is nothing preventing A and B from telling her about the circumstances of her birth and her national and cultural heritage.’Footnote ²⁷⁶ The Court seemingly equated knowledge of biological truth and the ability to oppose it to the world. In parentage cases (e.g. Kroon v. The Netherlands),Footnote ²⁷⁷ the parties’ knowledge of the biological truth does not exonerate the State of its responsibility to permit them to align legal status with biological and social reality.Footnote ²⁷⁸ The Court also placed weight on the absence of ‘practical or material disadvantages’ for the child,Footnote ²⁷⁹ an approach emphatically abandoned in K.K. v. Denmark a few months later insofar as inconsistent with identity rights.Footnote ²⁸⁰ In particular, it accepted that any inheritance difficulties could be overridden by way of testamentary disposition,Footnote ²⁸¹ a remedy which K.K. deemed unsatisfactory because other children were automatic beneficiaries on intestacy.Footnote ²⁸² In H., the Court also minimised the possible interference arising ‘from whatever degree of legal uncertainty might flow from the automatic recognition of [the surrogate’s husband]’ and considered it ‘very limited indeed’.Footnote ²⁸³ Moreover, the observation that ‘to date the Court has not held that the intended parents must immediately and automatically be recognised as such in law’Footnote ²⁸⁴ does not justify the lack of any legal avenue for the father or the child to establish their parentage if the gestational surrogate and/or her husband opposed it. This decision suggests that the Court remains deferential in the face of anomalies affecting surrogate-born children in purely domestic situations, possibly to avoid interfering with the domestic regulation of surrogacy, a contested field.

A key factual difference between Mennesson v. France/K.K. v. Denmark and H. v. The United Kingdom was the lack of competing parent figures in the former two.Footnote ²⁸⁵ In the latter, the gestational surrogate’s husband was by default the legal father, a status he could only lose voluntarily, although he had no genetic ties to the child and the indirect legal (marital) bond to the surrogate was too remote to offset the father’s genetic and intentional parenthood. Even accepting the initial presumption of paternity in favour of the husband of the woman who gives birth to the child, a statutory rule treating that presumption as irrebuttable – whereas even the fatherhood of the genetic mother’s husband can be contested in paternity proceedingsFootnote ²⁸⁶ – is a disproportionate interference with the child’s and the genetic father’s rights as well as amounting to discrimination against the child on grounds of conception.

Although the claim was not brought on behalf of the father, it is difficult to reconcile the Court’s stance in H. v. The United Kingdom with the finding in A.L. v. France, decided only a month earlier, that the natural father’s rights in a failed illegal surrogacy arrangement are entitled to protection in the form of expeditious paternity proceedings. A fortiori a genetic father who complied with the law should receive protection. The inflexible application of a legal regime running counter to both genetic and social reality, in that it offers no avenue to establish affiliation between the child and the genetic and moral author of conception, fails to strike a fair balance between competing rights. By contrast with foreign lawful surrogacy and illegal domestic surrogacy cases, where the commissioning father’s rights may be outweighed by his conduct contrary to domestic law, the full force of Article 8 rights should be upheld when surrogacy was a legal reproductive route under domestic law. Indeed, ECHR case law on natural fathers’ rights shows that they are entitled to the protection of their private and family life with the child when conception was planned and the father played an active role in raising the child.Footnote ²⁸⁷ There is no reason to treat the natural father who procreates through lawful recourse to surrogacy differently, only to benefit a man who did not intend to become a father and does not have biological links with the child.

H. v. The United Kingdom also sits uncomfortably with the Mennesson/Labassee/Foulon and Bouvet/Laborie line of jurisprudence, namely with the principle that the surrogate-born child’s identity rights require the establishment of legal affiliation with the genetic commissioning father. It is equally at odds with K.K. v. Denmark, where the child’s identity rights were also found to require the recognition of legal affiliation, and no lesser measures, between the child and the non-genetic intended parent; this was so even if the practical impact of non-recognition was minimal, given the legal mechanisms safeguarding the stability of the family unit.

Furthermore, the adverse consequences for the child would have deserved a less cavalier approach in H. v. The United Kingdom. One cannot underestimate the confusion for the child of being brought up by a couple she views as her parents (one of them indeed a biological parent), while the law treats as parents another couple with whom she has infrequent contact and who are not biologically related to her. This situation could not be said to serve the child’s best interests. The certainty and clarity of who the law treats as a parent, invoked by the respondent as a legitimate aim,Footnote ²⁸⁸ in practice is negated by the unnecessary complexity of different layers of parenthood and the confusing dissociation between genetic/social fatherhood and legal fatherhood. The aim of ‘ensuring that donors of gametes used in the process of assisted procreation were not treated as legal parents’Footnote ²⁸⁹ is certainly irrelevant, insofar as commissioning parents embarking upon surrogacy are not acting as donors. The third aim invoked, ‘ensuring that surrogacy arrangements, while lawful, were not enforceable in domestic law’,Footnote ²⁹⁰ is in itself questionable, because it fails to protect both the individuals who enter such arrangements in good faith and the resulting children. If surrogacy is lawful, that is, not viewed as morally objectionable, the uncertainty of the fate of one’s genetic material and parenthood plans, left at the will of third parties, is problematic. Particularly iniquitous is the veto right given to the surrogate’s husband, a party who does not have any contribution to either conception or gestation.

Since ‘there remains no consensus among the Contracting States when it comes to the acceptance of surrogacy arrangements’, the Court endorsed the objectives presented by the respondent as pursuing the legitimate aim of protecting the rights and freedoms of others.Footnote ²⁹¹ As regards the necessity and proportionality of the interference, the Court recited its general principles on the lack of consensus on delicate ethical matters and the conflict between rights widening the margin of appreciation, and on identity issues restricting it.Footnote ²⁹² The Court’s conclusion misses the crux of the complaint, which did not question the lack of automatic recognition of the child’s relationship with the genetic father or the rule attributing fatherhood to the surrogate’s husband at birth, but challenged the absolute impossibility of recognition of the father’s parenthood if the surrogate or her husband oppose it:

As in D. v. France, the Court read down Mennesson to accommodate its conclusion that the UK’s surrogacy regime was ECHR-complaint:

Even applying the Court’s reasoning, no ‘possibility of recognition’, through any ‘formal means of recognition of parentage’, was available to the genetic father, as the surrogate and/or her husband’s lack of consent was an insurmountable bar. This rigid regime reserved to surrogacy cases stands in contrast with natural conception cases, in which fatherhood can be reallocated by a court based on DNA or other evidence. The Court’s reading appears in part influenced by the applicant’s submission that there should be ‘a “normative presumption” in favour of recognising the biological father on the birth certificate’,Footnote ²⁹⁵ which was interpreted by the Court as a presumption at birth (i.e. automatic registration), instead of a presumption that the birth certificate ought to reflect – possibly at the end of a court process, not necessarily ab initio – genetic fatherhood.

The H. v. The United Kingdom ruling, albeit excessively deferential in its acceptance of indirect means of securing family ties instead of legal affiliation, does not detract from the pivotal role of genetic links between the child and (one of) the intended parent(s) in activating ECHR protection. This is further demonstrated, a contrario, by the different treatment of surrogacy agreements in which neither member of the couple was genetically related to the child. In Paradiso and Campanelli v. Italy, where neither parent had biological ties with the child (due to the foreign clinic’s error or fraud), the Grand Chamber found that ‘family life’ did not exist, the intended parents had no standing to apply on behalf of the child, and the interference with the adults’ ‘private life’ was justified.Footnote ²⁹⁶ This suggests that intentional parenthood, even where corroborated by (incipient) effective social parenthood, does not entitle the couple to legal recognition as parents, notwithstanding the legal affiliation established abroad.

In Valdís Fjölnisdóttir and Others v. Iceland, the Court accepted that a married same-sex female couple and the child conceived through surrogacy in the United States, unrelated to either but placed in their foster care in Iceland (where the prohibition on surrogacy meant that the couple could not be registered as his legal parents), had developed bonds amounting to ‘family life’ during the course of long-term effective care (four years at the time of the final domestic judgment).Footnote ²⁹⁷ The Court distinguished that situation from Paradiso and Campanelli v. Italy, where, despite the existence of a ‘parental project’ and ‘the quality of emotional bonds’, the brevity of the relationship between the intended parents and the child (eight months) and the uncertainty of legal ties meant that the criteria for ‘family life’ had not been met.Footnote ²⁹⁸ However, by contrast with cases where a genetic link existed between one commissioning parent and the child born through foreign surrogacy (e.g. Mennesson), Valdís Fjölnisdóttir indicated that respect for family life can be ensured through routes other than legal affiliation when the child is not biologically related to the couple, such as a foster care arrangement. This reinforces, by contrast, the notion that biological parenthood, which is central to a person’s identity, requires special measures of protection, in particular the prompt legal recognition of the parent–child relationship.

It could be thought that the raison d’être of surrogacy is to allow a person to have a biologically related child in circumstances where their partner’s infertility (or the absence of a partner) threatens their procreative future. Where neither of the commissioning parents is related to the child, conception via double gamete donation and surrogacy has less to do with the aspiration to reproduce and more to do with the desire to fulfil a parental role. The extent to which Article 8 protects the position of non-biological intended parents is discussed in Chapter 3.

2.5 Concluding Remarks

Albeit reined in by the margin of appreciation doctrine, the judicial reinterpretation of the rights enshrined in the ECHR in light of scientific advances has progressively expanded reproductive freedom. Case law developments have propelled a new cluster of reproductive rights centred around geneticism: first, the right to respect for the decision to become a genetic parent, even when a person can acquire the status of legal parent to an unrelated (e.g. adoptive) child (Evans v. The United Kingdom), and the right to make use of the available ARTs in order to conceive a child, such choice being an expression of private and family life (Dickson v. The United Kingdom, S.H. v. Austria, Knecht v. Romania, Nedescu v. Romania, Pejřilová v. The Czech Republic, Lia v. Malta); second, the right to use embryos created with one’s gametes for the purposes of reproduction, subject to the equal rights of the other gamete provider and public policy interests (e.g. ensuring that clinics only operate with appropriate credentials); third, the gamete providers’ right to decide the fate of embryos no longer intended for a pregnancy, subject to competing interests, such as the protection of embryos or deceased partners’ self-determination rights (albeit not parenthood-oriented, it reinforces the right to exercise control over one’s genetic material); fourth, the right of surrogacy-born children to the recognition of legal ties with the genetic intended parent. Thus, the indiscriminate refusal of assisted insemination facilities for prisoners and unreasonable delays in gaining access to one’s frozen embryos for treatment amount to breaches of Article 8. In inter-American jurisprudence, the right to make use of ART (specifically IVF) is also linked to the acceptance of infertility as disability, requiring special measures of protection (Artavia Murillo v. Costa Rica). The right to make use of ART in order to become a genetic parent has been cemented by the relative success of other geneticism-based claims, such as the right to exercise control over one’s own genetic material, inter alia over embryos created with one’s gametes, albeit limited by the free will of the other gamete provider or the State’s interest in protecting human embryos (Parrillo v. Italy).

Alice Margaria has noted the incremental shift from the recognition of the right to respect for the decision to become a parent as subsumed under ‘private life’ in Evans to its protection under both the ‘family’ and ‘private life’ limbs of Article 8 in Dickson and S.H.Footnote ²⁹⁹ One might conjecture that what attracted the application of the ‘family life’ limb was the presence of married couples; indeed, reiterations of the principle can be found in Knecht, Pejřilová and Lia, all cases involving married couples. Although the right to ‘found a family’ under Article 12 has fallen in desuetude in Strasbourg practice after E.L.H. and P.B.H. v. The United Kingdom, apparently the historical association in this provision between marriage and procreation has transferred to the analysis of (planned) ‘family life’ under Article 8.

Despite these achievements, the ECtHR’s emphasis on State discretion in the sensitive field of bioethics continues to inhibit the further development of procreative rights. The Court has been reluctant to require States to permit certain medically assisted procreation techniques in pursuit of parenthood aspirations: techniques involving third-party contributions, in particular ova donation and heterologous IVF (S.H. v. Austria) and posthumous reproduction, for example, fertilisation with the deceased husband’s frozen gametes (Pejřilová v. The Czech Republic). While a claim to the legalisation of surrogacy has not been entertained, the case law on the recognition of legal effects to overseas treatment indicates that ECHR States are entitled to view it as contrary to public policy (Mennesson v. France). Although the refusal to allow access to certain assisted reproduction methods has been qualified as an active interference with Article 8 rights, it was nevertheless found within the States’ margin of appreciation.

This deferral to State regulation of ART does not recognise that the effective enjoyment of the right to exercise the choice of becoming a genetic parent may require access to third-party–assisted reproduction, for example, where the use of donor gametes and/or surrogacy is the only means to conceive a child genetically related to (at least a member of) the couple. To that extent, gamete donation should be permitted in order to reconcile genetic parenthood and the free choice of partner; the refusal to treat aspiring parents with donated ova/sperm places them in an unenviable position of having to sacrifice either their family life with an infertile partner or the pursuit of biological parenthood. There is limited acknowledgement of infertility as a disability rights issue in ECHR case law, and Article 14 should play a more prominent role. The refusal to permit access to certain forms of ART, albeit evenly applied, affects reproductively challenged couples significantly more. Scott recommended that the ECtHR should ‘develop its understanding of reproductive interests under Article 8 with reference to the concept of reproductive health’ and recognise that ‘those with fertility problems cannot choose to reproduce without some form of medical assistance’.Footnote ³⁰⁰ It would be desirable for the ECtHR to borrow from the jurisprudence of its inter-American counterpart, who established an unequivocal link between reproductive health and autonomous choice and the discriminatory nature of bars on ART, which fail to acknowledge infertility as a disability (Artavia Murillo v. Costa Rica).Footnote ³⁰¹

Surrogacy remains the most disputed route to securing a biologically related child. By contrast with access to gamete donation (initially upheld by the Chamber judgment in S.H. and Others v. Austria), there is no indication that Article 8 might be interpreted as requiring States to allow individuals/couples to resort to surrogacy. However, notable advances have been made towards the protection of family life built on overseas surrogacy arrangements. The surrogate-born child’s right to respect for private life requires the recognition of parentage, which is an important facet of a person’s identity. Although this indirectly benefits the genetic commissioning parent, on a principled level, it is not unproblematic that the Court has only upheld the child’s rights in foreign surrogacy cases.

The ECtHR’s position is rather questionable in its ambiguous treatment of genetic intended mothers. It did not require the immediate recognition of maternal affiliation through the transcription of the foreign birth certificate, viewing step-parent adoption as equally appropriate (D. v. France), by contrast with the (at least initial) approach to genetic intended fathers (Mennesson/Labassee/Foulon), later read down to merely require some possibility of recognition (D. v. France) and not even necessarily through the rectification of the birth certificate (H. v. The United Kingdom). The failure to recognise a genetic parent ab initio runs counter to well-established Article 8 principles: (1) the law must allow the reality of biological ties corroborated by de facto ties to prevail over rigid presumptions of parenthood (Kroon v. The Netherlands); (2) hurdles to the recognition of affiliation, such as the requirement that a biological mother adopt her own child to create legal ties, leave the child temporarily in a legal limbo and prevent the development of normal family life (Marckx v. Belgium); (3) the ‘right to know one’s parentage’ is an integral part of the notion of ‘private life’.Footnote ³⁰² Even making allowance for the concerns raised by commercial surrogacy, human rights law should promote respect for biological parenthood (with the sole exception of parents uninterested in fulfilling a parental role). Mulligan has argued that

However, the rights of the genetic and the gestational mother are not in conflict in overseas surrogacy cases, in that the surrogate is not interested in asserting parenthood and that the legal transfer of parenthood has been completed under the relevant law. Upholding the genetic mother’s parental status would not require States to choose between competing private rights, nor to revisit their legal definition of motherhood.

The regulation of fatherhood following domestic lawful surrogacy agreements has also attracted unwarranted deference (H. v. The United Kingdom). While the objective of ensuring legal certainty as to a person’s maternal and paternal affiliation is laudable, a rigid scheme, always identifying the surrogate mother and her husband as the legal parents if they are unwilling to surrender the child, ought to have been found disproportionate and outside the margin of appreciation, insofar as it does not allow courts to make the decision that promotes the best interests of the child. Whenever a child’s identity is at stake, the margin is narrower and calls for a closer scrutiny, even in the absence of European consensus. When the surrogate and her husband are not genetically related to the child and a court has determined that the child’s welfare is promoted by being raised by the intended parents, that court should also have the authority to transfer legal fatherhood to the genetic commissioning father, in the way it is already able to do in disputed paternity proceedings involving children born through natural intercourse. The aim of clear allocation of parenthood is not seen by the legislator as frustrated by declarations of parentage or adoption orders; the rigidity of the law in connection with surrogacy-born children is therefore inconsistent. The disproportionate veto power given to the surrogate’s husband in relation to the genetic father’s parental status, despite the former’s lack of genetic or other ties with the child, and considering the child’s identity rights, does not strike a fair balance between competing interests. Moreover, a child born via surrogacy in a country such as the UK is arguably discriminated against on the ground of conception when compared to children born via natural intercourse; the latter’s identity rights are protected by legal avenues for establishing their true parentage and enjoying the rights flowing from legal affiliation with the genetic parent.

The ECtHR’s apparent concern to preserve States’ prerogative to regulate ART has led to the endorsement of further questionable domestic balancing acts. A notable example was the UK’s IVF scheme, which gave absolute protection to male gamete providers’ right not to become a parent, at the expense of the woman’s right to become a parent, even in circumstances where the joint frozen embryos were the woman’s last surviving procreative material and she had relied on the man’s reassurances of continued consent when choosing to fertilise her oocytes with his sperm. The Court ought to recognise a positive duty for States to protect a person’s ability to become a genetic parent against third-party interference (including misrepresentations and breach of promise). It should also voice the need to acknowledge the different reproductive burdens of men and women when striking a balance, in that ova extraction is much more invasive and requires medical facilities, and ova cryopreservation has much lower chances of success when compared to embryo or sperm cryopreservation, hence the different impact on women of belated withdrawal of consent to the preservation and use of shared embryos.

The Court will soon have an opportunity to revisit its approach to posthumous reproduction, specifically the widow’s right to make use of her late spouse’s stored gametes or joint embryos for the purposes of ART. The new cases pending before the Court (Dalleau v. France; Caballero v. France) feature clear evidence of the deceased’s anticipatory decision to become a parent. Subject to child welfare considerations, the ECtHR ought to require States to accommodate the deceased’s advance directives and the surviving spouse’s decision to continue the reproductive project. The judgments issued to date, while invoking the free will of the deceased, could have requested States to prioritise the rights of the surviving spouse – at least by affording an opportunity to demonstrate the deceased’s support for posthumous insemination in a court – through a process analogous to existing ones for inferring the wishes of patients in permanent vegetative state or for the retrospective assessment of a request for assistance in dying. Even in the absence of incontrovertible evidence as to the wishes of the deceased, a law preventing a woman from using embryos created with her own genetic material when her spouse dies unexpectedly should be viewed as an excessive interference. The position of the parent of the deceased (Petithory Lanzmann v. France) should also be revisited: in particular, the legal standing as next of kin to defend the deceased child’s reproductive wishes and their own right either to become a biological grandparent by using the deceased child’s frozen embryos or to donate them to an infertile couple – especially when this coincides with the deceased’s wishes and the alternative is the destruction of the embryos. Naturally, this should remain subject to a case-by-case determination.

In the future, the Court may also hear economic claims related to ART. Although the Court has preferred to examine the refusal to allow ART as an interference (affecting a negative obligation), the issue of provision of treatment free of charge may require the demonstration of a positive obligation. Concerns have been expressed in the literature over the cost to supply fertility treatment services if States were found to have any such obligation as a matter of human rights. It was suggested that the provision of food, housing and healthcare needs can be seen as a more legitimate imposition on the public.Footnote ³⁰⁴ This concern over the burden on public finances, if a right to subsidised ART in the furtherance of parenthood aspirations were to be recognised, overlooks the burden already imposed on taxpayers by the duty to provide financial support for any number of children a person chooses to have naturally, as well as the costs associated with children in State care, which stem in part from irresponsible natural reproduction (i.e. reproduction regardless of the couple’s interest or ability to support their children). Although the focus of public assistance to low-income and unemployed parents is on the well-being of existing children, many children would not be brought into existence but for welfare policies providing the wrong incentive to procreate. Indeed, the stimulus effects of welfare generosity on reproductive behaviour are well documented.Footnote ³⁰⁵ Indirect discrimination can arise if the State respects the wish to procreate – at the public’s expense – of people who can procreate naturally (regardless of whether they have ever contributed to the public purse), while the wish of those who need State support to conceive, but are capable and willing to bring up their children without State assistance (and are possibly long-term tax payers), is not respected. Filtering the desire to be a parent based on the amount of public funding required to become pregnant, but not the amount required to raise a child (which is greater), creates an unethical double standard. Moreover, if, in countries offering taxpayer-supported healthcare, the public cost of antenatal care for mothers during pregnancies is not invoked to limit the number of children a person can have if they can procreate naturally, the costs for the national healthcare system to assist reproductively challenged couples to procreate should not prevent the development of the right.

If the practice of surrogacy becomes more widespread, further questions will be facing Strasbourg judges as regards the appropriate regulation of competing rights, notably the conflict between the surrogate mother’s rights and those of the commissioning parents. From that perspective, the single most contentious issue, resolved differently by different jurisdictions, is whether or not the surrogate should be permitted to renege on the arrangement and refuse to surrender the child.Footnote ³⁰⁶ Arguably, at least in gestational surrogacy cases in which the commissioning mother’s ova were used to create the embryo implanted in the surrogate, genetic and intentional parenthood and good-faith private agreements should trump the surrogate’s rights. The latter merely rely on the assumption of pregnancy risks; the provision of the environment for the development of the foetus; giving birth; and historical attachment to viewing the woman who gave birth as the mother. Indeed, the commissioning mother never agreed to act as an egg donor for the surrogate, and her private and family life would be disproportionately curtailed by the opposite solution. In traditional surrogacy cases, the father’s Article 8 rights should prevail on the surrogate’s rights when deciding the child’s residence; they both have an equal biological link, but the child would not have been born but for the agreement that the child would be a part of the father’s family. A law permitting a radical change in the commissioning couple’s circumstances (from a joint child to the father co-parenting with the surrogate and the commissioning mother assuming a step-parent role), only to accommodate the surrogate’s refusal to honour freely agreed arrangements, should be seen as disproportionate. Indeed, it also breaches the commissioning father’s right not to procreate with a person he has not chosen for those purposes. In a distant future, the Strasbourg Court may have to address similar dilemmas, left for now to domestic legislatures.