Surrogacy arrangements and the best interests of the child: European Perspective

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European Perspective

Orsolya-Zsuzsanna Csortán

SURROGACY ARRANGEMENTS AND BEST INTERESTS OF THE

CHILD

Spring Semester 2020

Independent written essay within the field of constitutional law and human rights, 15.0 hp Master’s Programme in Constitutional Law and Human Rights, 60.0 hp

Supervisor: Markus Naarttijärvi

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Table of content

Abbreviations ... 3

1 Introduction ... 4

1.1 Background ... 4

1.2 Aim and Objective ... 6

1.3 Method ... 6

2 The child’s best interests in surrogacy arrangements ... 7

2.1 The Child’s best interests principle ... 7

2.2 Children’s right not to be turned into a commodity or to be sold ... 8

2.3 Children’s right to identity ... 10

3 ECtHR jurisprudence in surrogacy cases ... 13

3.1 Mennesson v. France- The first case ... 13

3.2 Paradiso and Campanelli v. Italy- No genetic link ... 15

3.3 C and E v. France- New way forward? ... 18

4 Conclusion ... 19

Bibliography ... 21

Literature ... 21

Articles and Journals ... 21

Case-law from the European Court of Human Rights ... 22

International Treaties ... 22

UN Documents ... 22

News Articles ... 23

Other ... 23

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Abbreviations

UNCRC United Nations Convention on the Rights of the Child CRC Committee on the Rights of the Child

ECHR European Convention on Human Rights ECtHR European Court of Human Rights

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4

1 Introduction

1.1 Background

Surrogacy,¹ as a situation where a woman gestates a pregnancy on behalf of another person, on the understanding that she will hand the child over to them on its birth has been practiced for centuries. As Brinsden presents, references to traditional surrogacy can be found in the Holy Bible, in the Old Testament at around 2000 BC. Married couple Abraham and Sarah could not conceive on their own. Sarah turned to her maiden, Hegar, who eventually bore a son, Ishmael, for the couple. Also, there is reference to traditional surrogacy in the Hammurabi Code of Law, which dates back to 1800 BC, stating that: ‘A childless wife might give her husband a maid to bear him children, who were reckoned hers”.² Since then recent advancements in surrogacy has given new hope to many people who wished to become parent but faced barriers, including LGBTQ people and people experiencing infertility. However, it also raised complex legal, ethical issues and questions about the impact on the human rights of the various parties involved at every stage of the process. These fundamental issues include, but are not limited to:

the nature of parenthood and the attributes of human dignity, individual autonomy, and distinction between what can be considered an object of commerce, what can be only considered as a gift and what is prohibited to be transferred.³ In this sense, most countries prohibit surrogacy arrangements on the grounds that it is both degrading and exploitative of vulnerable women, and they argue that it goes against the best interest of children in general, because it has the effect of reducing them to a commodity that can be bought and sold.⁴ It is clear that various interest are at stake, all worthy of protection, in surrogacy arrangements but one must not forget that at the center of it stands the child who was conceived and born this

1 An international surrogate arrangement entails that intended parents from one state enter into a surrogacy agreement with a surrogate from another state. These agreements can be divided into two main categories: altruistic surrogacy and commercial surrogacy. It is called altruistic because the surrogate either does not receive any compensation for the ‘service’ she provides or only receives compensation to cover reasonable expenses that comes from pregnancy, such as work loss and medical bills. In the case of commercial surrogacy, the intended parents give a compensation to the surrogate mother which goes beyond the reasonable expenses. Also, a surrogate arrangement can be either gestational or traditional. In a traditional surrogacy the surrogate mother uses her own gamete, making her the genetic mother of the child. The male gamete might come from the intended father or form a third-party donor. In a gestational surrogacy the surrogate mother has no genetic relationship to the resulting child. In these cases, either the intended mother’s gametes are an egg donor’s. Definition provided by the Council of General Affairs and Policy of the Hague Conference, ‘The Desirability and Feasibility of Further Work on the Parentage/Surrogacy Project (Prel. Doc. 3B)’, Hague Conference on Private International Law, Hague, 2 March 2014, Anexx A, available at:

https://assets.hcch.net/docs/6403eddb-3b47-4680-ba4a-3fe3e11c0557.pdf, accessed: 25 May 25 2020

2 Peter R. Brindsen, ‘Surrogacy’s Past, Present, and Future’, In Sills, E.S. (ed.), Handbook of gestational Surrogacy: International Clinical Practice and Policy Issues, Cambridge University Press, 2016, pp. 1-8, pg. 1

3 Yasmine Ergas, ‘Babies without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogcy’, Emory International Law Review, Vol. 27, 2013,

4 Roberto Andorno, ’Intercountry surrogacy and the best interest of the child’, In: Luisa Neta

& Rute Teixeira Pedro, Debatendo a procriacao medicamente assistida, Porto, Faculty of Law of the University of Porto, pp. 127-136, pg. 128

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5 way. Just like in the case of all children, children born through surrogacy arrangements have to be recognized as right holders.⁵ As a conclusion, they are entitled to enjoy all the rights that are guaranteed under the United Nations Convention on the Rights of the Child. Moreover, as Article 3(1) of the Convention on the Rights of the Child states: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. Therefore, in all actions, that includes actions concerning surrogacy arrangements, be that the relationship between the child and the intended parents, their citizenship or their welfare, the best interest of the child has to prevail over other considerations.

Although prohibiting surrogacy arrangements and not recognizing its effects on their territory, States are taking preventive approach in order to discourage their citizens from going abroad to engage in surrogacy agreements, Glyn claims that this ex-post facto approach is ineffective and States should focus on ex-ante regulation, before the arrangement takes place.

She bases her argument on the grounds that children’s right have to prioritized.⁶ One of the most infamous case which best illustrates what happens to children in the absence of coherent regulations and in the presence of ex-post facto approach is the case of the Balaz twins. This case concerned the Balaz twins who were born through surrogacy arrangements in India. Their birth certificates were issues listing the intended parents, a German couple, as the legal parents of the children. The German consulate refused to issue passport for the children, arguing that the twins had no legal filiation with the intended parents considering that surrogacy arrangements are prohibited in Germany. The parents requested Indian passports, which named the intended father, Jan Balaz, as the father and the surrogate, as the mother. However, the Indian Government revoked the passport on the ground that there was an inconsistency between the birth certificates and the passport regarding the name of the mother. In order to protect the children from becoming stateless, the intended parents turned to the judiciary. The Gujarat High Court held that the twins were Indian nationals as they were born to an Indian mother. The Court urged the authorities to solve the twin’s situation by adoption which started new legal issues because of the adoption regulations. After two years after their birth, the children were able to leave India as they were issues with German visa and Indian exit documents. The intended parents were allowed to adopt them under German law.⁷ This case, and many others,⁸ show that the different regulations that crisscross international surrogacy give rise to various difficult situations.

As it will be shown in the next chapters, surrogacy is a controversial practice in Europe too, there is no consensus on its legality or on how it should be regulated. For example Italy, France and Germany prohibit all forms of surrogacy. In the UK, UK nationals can engage in altruistic surrogacy agreements. Ukraine and Russia permit all forms of surrogacy arrangements

5 UN Committee on the Rights of the Child (CRC), General Comment No. 14 (2013) on the right of the child to have his or her interests taken as a primary consideration (art. 3 para. 1), 29

May 2013, CRC/C/GC/14, para. 16(b) available

at:https://www.refworld.org/docid/51a84b5e4.html, accessed: 25 May 2020

6 Claire F. Glyn, ‘Outsourcing Ethical Dilemmas: Regulating International Surrogacy Arrangements’, Medical Law Review, Vol. 24, No. 1, pp.59-75, 2016, pg. 70

7 Lily Sronkoski, ‘Surrogacy in India: Jan Balaz vs. Union of India’

https://www.arcgis.com/apps/Cascade/index.html?appid=43c616cb5fa54d009061b12d7d6c3c 42 , accessed: 25 May 2020

8 For instance the Case of Baby Manji- a child commissioned by a Japanese couple who divorced before the baby was born.

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6 not just for their nationals but also for foreigners.⁹ Due to the lack of harmonization within the legal systems of Member States of the Council of Europe, it does not come as a surprise that the European Court of Human Rights faces a great challenge to define and apply the Convention rights in the field of surrogacy.¹⁰ Up until today the Court had ruled on several cases in the context of international surrogacy arrangements, the leading cases concerned issues such as legal recognition between a child born through surrogacy arrangement and his genetic father and the removal of a child from his intended parents due to the lack of parentage. In regards to this, the thesis will explore whether there is a consistent approach and balancing of interests in the Court’s jurisprudence in the surrogacy context from a children’s rights perspective.

1.2 Aim and Objective

The aim of this thesis is to analyse the human rights dimensions of surrogacy arrangements, focusing on the rights of children who are born through these arrangements and face various issues right after that they were born. The first main objective is to explore what role the principle of the best interest of the child plays in these arrangements and what does this principle mean for the individual child in contrast with children in general in the context of surrogacy. The second main objective is to examine the European Court of Human Rights jurisprudence in surrogacy cases in order to explore to which extent the Court has safeguarded the best interest of the child who was conceived and born through surrogacy arrangements abroad and whether there is a coherent approach in the Court’s reasoning when it balances the different interest at stake in such cases.

1.3 Method

In order to accomplish the identified goals the chosen method is the traditional legal method. Hence, I will explore the principle of the child’s best interest as it is present in different legal documents and conventions and I will discover its applicability in surrogacy arrangements through the eyes of various scholars. Also, I will explore through a theoretical doctrinal approach, what is expresses in academic works on the chosen field, the key judgments of the ECtHR. Moreover, in order to provide a better understanding on some of the issues that will arise in regard to the ECtHR reasoning, I will use ECHR methodology.

9 Alice Cuddy, ‘Where in Europe is surrogacy legal?’

https://www.euronews.com/2018/09/13/where-in-europe-is-surrogacy-legal, 12 September 2018, accessed: 26 May 2020

10 Andrea Mulligan, ‘Identity Rights and Sensitive Ethical Questions: The European Convention on Human Rights and the Regulation of Surrogacy Arrangements’, Medical Law Review, Vol. 0, No. 0, pp.1-27, pg. 2

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2 The child’s best interests in surrogacy arrangements

After exploring what the principle entails, this chapter will argue that the principle ‘best interest of child’ in surrogacy arrangements demands different action from the States in case of an individual child, who has already been born through this arrangement, as opposed to children in general for the reasons that will be presented below.

2.1 The Child’s best interests principle

Article 3 paragraph 1 of the United Nation Convention on the Rights of the Child states:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration’.

The best interest of the child is a threefold concept.¹¹ It is a right, a principle and a rule of procedure. It is a right as it gives every child in all actions concerning them the right to have its best interest taken into primary consideration, be that a private or public decision making.¹² It can be invoked before a court as a free-standing right, it does not need to go in conjunction with any other right of the Convention.¹³ It is also, a principle, it is one of four holistic principles that the Convention contains. Also, since all the Articles in the Convention must be interpreted and assessed in the light of the best interest principle, it is considered to be an overreaching principle.¹⁴ If a right protected under the Convention contains more than one interpretation, the interpretation that serves the child’s best interest to the fullest must be chosen.¹⁵ The child’s best interest is also a rule of procedure. It obligates the states that in every decision or procedure affecting a child to present how the best interest principle has been applied and complied with.¹⁶ It is required that states show that the decision has included an assessment on how the child will be affected by it, both positive and negative impacts.¹⁷

There is no correct definition on what the best interest of the child in a certain issues is, meaning that it has to be determined from the facts and circumstances of each case by analyzing the situation the child is, for individual decisions, and the need of the children, for decisions concerning children in general.¹⁸ Even if the principle requires that that best interest of the child to be a primary consideration, it does not mean that children’s interests are absolute.¹⁹

Children’s rights are at risk due the non-harmonizing domestic laws on legal parentage and due to the lack of consensus between States over the legality of surrogacy. As it will be

11 Committee on the Rights of the Child, ‘General Comment No.14 (2013) on the right of the child to have his or her best interest taken as a primary consideration (art.3, para.1), pg.4

12 Ibid

13 Ibid

14 Ibid

15 Ibid

16 Ibid

17 Ibid

18 Ibid, pg. 9

19 Thoko Kaime, ‘The Convention on the Rights of the Child: A Cultural Legitimacy Critique’, Europa Law Publishing, 2011, pg. 106

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8 shown, in most of the cases the States argue that the reason for rejecting the recognition of legal parentage, even if goes against the principle of the best interest of the child, is because they do not want to create a loophole in the prohibition of surrogacy on their territory by offering the possibility for couples to engage in international surrogate arrangements.

2.2 Children’s right not to be turned into a commodity or to be sold

The potential commodification of children in commercial surrogacy is one of the strongest arguments against these arrangements. According to this argument, children born from surrogacy can be viewed as “commodities to be bought in the marketplace”.²⁰ Turning children into object of sale, devalues their life and human life in general.²¹ Some scholars claim that the issue of commodification is present in altruistic surrogacy arrangements too: “The child then can be seen as the product of an expensive business transaction. Technically, the commissioning parents may be buying gestational services but they feel they are buying a baby”.²² This reduction of children, their potential commodification is clearly illustrated in the

‘Baby Grammy’ case. Since surrogacy is illegal in Australia, an Australian couple travelled to Thailand and used a broker to engage a woman as a gestational carrier. She became pregnant with twins, but at 4 months, the male twin was found to have Down’s syndrome and a congenital heart condition. The clinic asked the woman to abort the child but she refused, citing her Buddhist beliefs. After she gave birth, the intended parent took the healthy female twin, leaving Gammy, the critically ill child behind.²³ In this case, it can be easily argued that the inteded parents considered the ill child as a commodity that did not meet their expectations and for this reason they chose to refuse him.

There is neither an explicit prohibition of surrogacy nor an explicit recognition in international law stating one’s right to enter into a surrogacy contract. Also, there are a very few international human rights norms addressing the children’s situation that have been articulated and most of them are non-binding.²⁴ For this reason, when discussing whether children born from surrogacy arrangements may be viewed as commodities that were simply bought, it is important to assess the role of regulation of such arrangements. This lack of regulations does not only fails to protect children from becoming a commodity, it also opens the door for the risk of illegal sale of children. It is important to note that international customary law and treaties explicitly prohibit trafficking and sale of children.²⁵ Article 35 of the Convention on the Rights of the Child states that: “States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in

20 Claire I. Achmad, ‘Children’s Rights in International Commercial Surrogacy. Exploring the challenges from a child rights, public international human rights law perspective, PhD thesis, Leiden University, pg. 89

21 Jane Stoll, ’Surrogacy Arrangements and Legal Parenthood. Swedish Law in a Comparative Context’, PhD Thesis, Uppsala University, printed by Elander Sverige AB, 2013

22 Michael Freeman, ‘The New Birth Right? Identity and the Child of the Reproductive Revolution, 4 International Journal of Children’s Rights, pp.273-298, 1996, pg. 296

23 https://www.theguardian.com/commentisfree/2014/aug/04/baby-gammy-thailand- surrogacy-repulsive-trade-pattaramon-chanbua, accessed 24.05.2020

24 Roberto Andorno, ‘Intercountry surrogacy and the best interest of the child’, In: Luisa Neta

& Rute Teixeira Pedro, Debatendo a procriacao medicamente assistida, Porto, Faculty of Law of the University of Porto, pp.127-136, 2018, pg. 130

25 Ibid.

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9 children for any purpose or in any form”. The prohibition of the sale of children can be found in article 1 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. In this sense, the “sale of children” is defined in Article 2(a) of the Optional Protocol to the Convention on the Rights of the Child and the Sale of Children, Child Prosecution and Child Pornography which states, that: “sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”.

In this sense, Snyder argues than in developed countries, where commercial surrogacy is carefully regulated and where medical and legal entities implement and monitor the process effectively, the sale of children is more or less avoided.²⁶ In regards to this, the Special Rapporteur²⁷ points out that it is accurate to consider that unregulated commercial surrogacy systems often lead to the sale of children, but it is not accurate to state that regulated commercial surrogacy systems avoid the sale of children. The Committee on the Rights of the Child stated in its concluding observation on reports submitted by the US under article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, that:” […] The Committee is nevertheless concerned that widespread commercial use of surrogacy in the State party may lead, under certain circumstances, to sale of children”.²⁸ With other words, even if a State manages to regulate such arrangements, the risk does not disappear.

Some scholars even argue that children born through surrogacy arrangement, regardless of the type of surrogacy, are in a situation of slavery. They base their argument on Article 1 of the Convention against Slavery which defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” In this sense, they claim that the child is commoditized, meaning that her or his attribute of the right of ownership, the “abusus”, is exercised on them.²⁹ It is an interesting claim, it might even seem to be as a far-fetched opinion but one must aknowledge the importance of considering this issue from various perspectives.

Generally, the interest of not becoming a commodity as a form of protection is aimed at children as a group, but of course this interest can be expressed as an interest for the individual child

26 Steven H. Snyder, “Reproductive Surrogacy in the United States of America”, Handbook of Gestational Surrogacy, Cambridge University Press, 2016, pp. 276-286, pg. 285

27 Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, A/HRC/37/60, para.

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28 Committee on the Rights of the Child, ’Concluding observations on the combined third and fourt reports subbmitted by the United States of America under article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography’, CRC/C/OPSC/USA/CO/3-4

https://undocs.org/CRC/C/OPsc/USA/CO/3-4

29 Contribution of the European Centre for Law and Justice to the Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material relating to Safeguards for the protection of the right of children born from surrogacy arrangements, 31 May 2019, pg. 7, http://media.aclj.org/pdf/ECLJ-Contribution-SR-Report-for-Safeguards-for-the-protection-of- the-rights-of-children-born-from-surrogacy-arrangements-May-2019.pdf

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10 too. The next section will explore the overriding interest of the individual child, the interest to have a legally recognized relationship with her or his parents.

2.3 Children’s right to identity

This section argues that interest of not being reduced to a trading commodity is important but for the individual child, who has already been born and have been moved between different states, the prevailing interest is to have her or his relationship with the intended parents legally recognized.

The Convention on the Rights of the Child was the first document to recognize children’s right to identity. Article 7 of UNCRC affirms that every child has the right to acquire a nationality and the right to know and be cared for by his or her parents as far as possible. In this sense states have the positive obligation to ensure every child’s right to nationality and to prevent children from becoming stateless. This obligation is better highlighted in the second paragraph of Article 7 which states that implementation of this right is ensured by domestic law. This entails that states can determine the procedures for the acquisition or loss of nationality, but these regulations have to be in accordance with the relevant international instruments.³⁰ Also, Article 8 of the UNCRC gives a child the right to know his or her origin or identity and it places a positive obligation on signatory states to implement policies that enforce and protect these rights.

I will not discuss what ‘identity’ entails or what could be an adequate definition for it as it is a far-reaching dicussion and could be a topic of another thesis. The focus in this section is on the risk that surrogacy arrangements present for children’s identity.

In surrogacy cases at least two dimensions of the issues regarding the right to identity can be explored which likely have a distinct impact on the child’s right to identity. On one hand, the child either has only half genetic link with the intended parents, or no genetic link at all due to the fact that genetic materials are mostly donated anonymously. Without knowing where they came from, who are their genetic parents, the identity of the woman who gave birth to them, the children can find themselves in an “identity vacuum, lacking knowledge of their personal narrative”.³¹ On the other hand, the international nature of surrogacy arrangement leads to situations where the child grows up in a place and culture that is geographically distant from the place where she or he was born, a place different from their ethnic and cultural origins.³² Lacking the knowledge of one’s cultural and ethnic origins, as they are fundamental aspect of identity, results in children being ethnically and culturally dislocated and isolated. In this sense, Achmad points out that Article 16 of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption requires that special considerations should be given to the child’s ethnic and cultural background for children who

30 Ineta Ziemele, ‘A Commentary on the United Nations Convention on the Rights of the Child, Article 7: The Right to Birth Registration, Name and Nationality, and the Right to Know and Be Cared for by Parents, Leiden- Boston, Martinus Nijhoff Publishers, 2007, pg. 24

32 Ibid, pg. 59

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11 are adopted intercountry, she argues that this requirement should be extended by analogy to the surrogacy context.³³

The right to identity for children born through surrogacy arrangements in the light of the best interest principle can be discussed from three perspectives. On one hand, the knowledge about its origins helps the development of identity. On the other hand, the different kind of legal statuses such as nationality and the granting of legal parentage are fundamental elements of a child’s personal identity and denying them has detrimental effects on the child.³⁴ Lastly, it has to be taken into consideration that early childhood has been proven to be essential for the development of the child’s cultural and personal identity.³⁵ Not too long after birth children can recognize their parents or other caregivers, and they engage actively in non-verbal communication. Also, young children form strong mutual attachments with their parents or caregivers, relationships built this way provide the children with the sense of physical and emotional security, as well as consistent care and attention. The result of this relationship the child starts to build a personal and cultural identity. As a consequence, the primary caregivers are the ones through who the child can enjoy his or her right to identity.³⁶ All these has to be taken into account when deciding on the child’s situation.

Before turning to the European Court of Human Rights’ approach to issues concerning children’s identity in the context of surrogacy it is interesting to look at the Court’s identity jurisprudence.

Although the European Convention on Human Rights does not explicitly includes the right to preserve one’s identity, Article 8 of the Convention protects the right to respect for private and family life and according to the ECtHR’s case-law, the right to identity falls within the scope of the rights protected under Article 8 of the ECHR.³⁷ In this sense, in case of Odievre v. France the Court held that the Convention protects a fundamental interest “in obtaining information necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents, birth, and in particular the circumstances in which a child is born, forms a part of a child’s, and subsequently the adult’s, private life guaranteed by Article 8 of the Convention ”.³⁸ The phrase “circumstances in which a child is born” is important in the context of children born through surrogacy arrangements. Another significant text from the decision regard to this is the following: [people]“have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development”.³⁹ The Court continued to render judgments with same approach to identity questions. In the same year the Court delivered its judgment in the case of

33 Ibid, pg. 61

34 Petra de Sutter, Report ‘Children’s Rights related to surrogacy’, Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly, 21 September 2016

35 Committee on the Rights of the Child (CRC), ‘General Comment no.7: Implementing Child Rights in Early Childhood’ 20 September2006, UN Doc CRC/C/GC/7/Rev.1, para. 6, https://www.refworld.org/docid/460bc5a62.html

36 Ibid, para.16

37 Case of Odievre v. France, Application No. 42326/98: “Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world.”, para.29

38 Odievre v. France, Application No. 42326/98, para. 29

39 Ibid., para. 42

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12 Jaggi v. Switzerland.⁴⁰ Andreas Jaggi, a Swiss national requested a DNA test on the deceased to ascertain if deceased was his biological father. The Court claimed that the right to identity includes the right to know one’s parentage as a result, it held that the refusal of the Swiss authorities to authorize the DNA testing violated the applicant’s right to private life^.41In the case of Phinikaridou v. Cyprus,⁴² which highlighted the importance of the circumstances of birth and access to information, the Court stated that: it is “necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents”.⁴³ In the case of S.H. and Others v. Austria, a case concerning in vitro fertilization (IVF), the court stated that the State should “find an appropriate and properly balanced solution between competing interest of donors requesting anonymity and any legitimate interest in obtaining information of a child conceived through artificial procreation with donated ova or sperm”.⁴⁴ A short conclusion can be drawn from these texts, which is that the ECtHR confirms that the right to identity is not an absolute right and a balance must be struck between private and public interest involved in each case.⁴⁵

In the context of children born through surrogacy arrangements the most important judgments were rendered in the case of Mennesson v. France and Paradiso and Campanelli v.

Italy. In this chapter I will not discuss the cases in detail as they will explored in the next chapter.

The identity question in the case of Mennesson was approached in regards to the best interest of the child, which was paramount to the Court’s proportionality analysis. In this case, the Court noted that depriving children of filiation negatively impacts the fundamental aspect of their identity protected by Article 8 and conflicts with their best interests which has to be taken into account in all decisions that concern them. The Court pointed out that the children were facing legal uncertainties due to their uncertain citizenship. The Court also noted that under these circumstances the children were unable to inherit from their intended parents. Also, the Court defined the interest of the child in relation to the children’s biological link with their genetic father, considering the biological link crucial for the children’s identity.⁴⁶ For these reason, the Court held that France had exceeded its margin of appreciation. In the case of Paradiso and Campanelli v. Italy, the Court, again, had to deal with the identity aspect of the child’s right to private life after being born through a surrogacy arrangement. The difference between this case and the case of Mennesson is that, in the Paradiso case the child had no biological link with the intended parents and for his reason the child was without any legal identity for two years.⁴⁷As a result of this, the Court observed that this lack of identity caused the child disadvantage which goes against his rights protected by the UN Convention on the Rights of the Child.⁴⁸ This type of reasoning is missing from the Grand Chambers decision

40 Jaggi v. Switzerland, Application No. 58757/00, 03 July 2003

41 Ibid, para. 37

42 Phinikaridou v. Cyprus, Application No. 23890/02

43 Ibid, para. 45

44 S.H. and Others v. Austria, Application No. 57813/00, 03 November 2011, para. 84

46 Ivana Isailovic, ‘The ECtHR and the Regulation of Transnational Surrogacy Agreements.’, Blog of the European Journal of International Law, https://www.ejiltalk.org/the-ecthr-and-the- regulation-of-transnational-surrogacy-agreements/, accessed 23.05.2020

47 Paradiso and Campanelli v. Italy, Application No. 25358/12, para. 85

48 Paradiso and Campanelli v. Italy, Application No. 25358/12, para. 85

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13 which raises the possibility to argue that the final decision in the case of Paradiso was contrary to the child’s right to nationality, identity and by this, it is contrary to the general best interest of the child.

Bracken argues that there is an inconsistency in the Court’s evaluation of the best interest of children.⁴⁹ She notes that these cases are the best example to show that a constant tension exists in cross-border surrogacy cases between the interests of the individual child and interests of children in general. She points out that in the case of Mennesson, the reason for not recognizing the parent-child relationship was based on the French authorities’ policy to discourage their population from accessing surrogacy abroad. In the same manner, in the case of Paradiso, the Italian authorities claimed that their aim is to protect woman and children that can be potentially affected by practices that are considered problematic from an ethical point of view. ⁵⁰ It can be observed that in both cases the States stated the same legitimate aim but the balancing of interest was dealt differently.

3 ECtHR jurisprudence in surrogacy cases

Since most of the member states prohibit all forms of surrogacy the ECtHR jurisprudence on the matter revolves around cases regarding the refusal by domestic authorities to recognize a parent-child relationship in respect of children born as a result of foreign surrogacy arrangement. Taking into account that there is no consensus in Europe on the lawfulness of surrogacy arrangements or the legal recognition of the relationship between intended parent and children thus conceived abroad, the Contracting States enjoy a substantial margin of appreciation in this area which depending on the issues at stakes will be narrow one or wide one. In this chapter I will present the most relevant judgments rendered by the Court.

3.1 Mennesson v. France- The first case

This case concerned a French heterosexual couple who travelled to California to enter into a surrogacy contract which led to the birth of twins. According to the French Civil Code, even altruistic surrogacy arrangements are illegal in France which meant that the applicants had no domestic opportunity to have a child through surrogacy. The arrangement took place in California where the procedure is legal, and they used the father’s sperm along with donor eggs.

By the order of the Supreme Court of California, the intended parents were legal parent of the child pursuant. As they returned to France, the children’s birth certificates were entered in the French central register of births, marriages and deaths but the public prosecutor requested the annulment of the registration on the basis that it was contrary to the principles of French law

“to give effect, in terms of the legal parent-child relationship, to a surrogacy agreement”. The applicants complained that their rights to private and family life of both the parents and the children, protected by Article 8, had been violated. The Court conducted its regular proportionality analysis, considering whether the State’s action was in accordance with the law, if it persuaded a legitimate aim and if it was necessary in a democratic society. The Court concluded that the measure in the case was in accordance with the law, and that the legitimate

49 Lydia Bracken, ‘Assessing the Best Interests of the Child in Cases of Cross-Border Surrogacy: Inconsistency in the Strasbourg Approach?’, Journal of Social Welfare and Family Law, 2017, pg. 9

50 Ibid

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14 aim being pursued was the protection of children and surrogate mothers, which is included in the listed legitimate aims in Article 8(2): “protection of health” and “the protection of the rights and freedom of others”.⁵¹ The Court’s focused more on the questions whether the contested measure was necessary in a democratic society, and on the margin of appreciation.⁵² The Court reiterated that the scope of the State’s margin of appreciation varies depending on the circumstances, the subject matter and context. Also, the Court noted that when there is no consensus within the member States of the Council of Europe on a topic, the margin of appreciation will be wide, especially where the case raises sensitive moral or ethical issues.⁵³ Since surrogacy falls into this category, the Court concluded that the States enjoy a wide margin of appreciation regarding de decision whether or not authorize surrogacy, but also, whether or not to recognize a legal parent-child relationship arising between a surrogate-born child and the intended parents. Moreover, the Court continued the margin of appreciation analysis considering the essential aspect of the identity of individuals at stake where the legal parent- child relationship is concerned.⁵⁴ It concluded that in these cases the margin of appreciation has to be reduced.⁵⁵ In this sense, the Court carried out its assessment of the alleged violation of Article 8 by separately examining the right to family life and the right to private life.

On one hand, the Court found no violation of the applicant’s right to family life, admitting that the refusal to legally recognize the parent-child relationships at issues interfered with the applicant’s right but was a lawful and pursued a legitimate aim.⁵⁶ After assessing and focusing on their practical day to day life, the Court considered that the impact of this measure on their lives was minimal since according to French law, the parents were recognized as having full parental responsibility for the children on the basis of the US civil status.⁵⁷

On the other hand, the Court found a violation of the children’s right to respect for private life. Focusing on the children’s right to their personal identity, an aspect of the right to respect for private life, the Court noted that even though the parent-child relationship was recognized, the refusal to grant effect to the US judgment and to record the details of the birth certificate accordingly created a contradiction which undermines the children’s identity within the French society.⁵⁸ The Court observed that the resulting uncertainty as to whether the children would acquire French nationality was liable to have negative repercussions for the definition of their personal identity.⁵⁹ The Court acknowledged that while there is no right to acquire a particular nationality, nationality is an element of a person’s identity. The Court accepted the French policy of deterring citizens from going abroad to take advantage of methods of assisted reproduction that are prohibited on its own territory, but said that the effects of these are not limited to the parent alone, but also affect the children themselves and their right to establish the substance of their identity including the legal parent-child relationship. This aspect raised a serious question as to whether this measure is compatible with the protection of the child’s best interest⁶⁰ and in order to answer it, the Court conducted an analysis that took on a special

51 Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para. 75-86

52 Ibid, para. 77

53 Ibid, para. 78

54 Ibid, para. 81

55 Ibid

56 Ibid, para. 61

57 Ibid, para. 96

58 Ibid

59 Ibid, para. 97

60 Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para. 99

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15 dimension, where one of the parent was the biological parent. In regard to this, the Court said:

“It cannot be said to be in the interest of the child to deprive him or her of a legal relationship of this nature where the biological reality of the relationship has been established and the child and parent concerned demand full recognition thereof”.⁶¹ The significance of this case in the field of surrogacy cannot be doubted. Although the Court acknowledged that the member states enjoy a wide margin of appreciation as to whether to permit surrogacy on their territory, it gave precedence to the biological truth, which raised the possibility that the States could be compelled by the Convention to respect and recognize the result of cross-border surrogacy arrangements, even if that profoundly contradict the domestic prohibition.

In another case, the case of Labasse v. France,⁶² where the circumstances were similar, the Court with same reasoning found that having regard to child’s interests, the Article 8 rights of the child had been infringed.

According to these cases, Article 8 of the Convention requires from domestic law to provide a possibility of recognition of the legal relationship between a child born through a surrogacy arrangement abroad and the intended father if he is the biological father. It is clear that the Court placed some emphasis in its case-law on the existence of a biological link with at least one of the intended parents. In the Court’s eyes, as it expressed in the Mennesson case, a lack of recognition entails a violation of the child’s right to respect for his or her private life.

The Court assessed the margin of appreciation both in favor of narrowing it and widening it. It recognized that the lack of consensus and sensitive ethical nature of the case offered France a wide latitude but the circumstances of case implicated a crucial issue, the development of the children personal identity, which narrowed the margin of appreciation.⁶³ The Court rendered its judgment by focusing on the Member State’s responsibility in such cases, rather than passing judgment on the underlying substantive right.⁶⁴ In other words, considering the wide margin of appreciation that France enjoyed, the Court ruled that France can prohibit domestic surrogacy, but by failing to provide a process by which the children can establish their identities France violated the children’s right to private life.

3.2 Paradiso and Campanelli v. Italy- No genetic link

In the Paradiso⁶⁵ case, an Italian couple, entered into a surrogacy arrangement in Russia.

The child born through this arrangement was allegedly biologically linked to the applicant, the intended father. Under Russian law, the applicant were registered as the child’s parents, the surrogate mother gave her written consent to the registration. After arriving to Italy, with travel documents issued by the Italian Consulate is Moscow, the applicant requested the registration of the birth certificate in Italy after which criminal proceedings were launched against them on the grounds of “altering civil status”. The intended parents held that they entered into the arrangement on the basis that the intended husband’s sperm would be used along a donated egg,

61 Ibid, para. 100

62 Case of Labasee v. France, Application. No. 65941/11, 26 June 2014

63 Clare Ryan, ’Europe’s Moral Margin: Parental Aspirations and the European Court of Human Rights’, Columbia Journal of Transnational Law, Vol. 56, 2018, pg 46

64 Ibid.

65 Case of Paradiso and Campanelli v. Italy, Application No. 25358/12, 24 January 2017

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16 and accepted that the intended mother had never expected to have a genetic relationship to the child.

The main difference between this case and the case of Mennesson can be found in the Court’s view of the importance of the right to identity, and the influence this right has on the margin of appreciation. Also, adoption procedures were instituted and the Court requested a DNA test. The test showed that there was no genetic link between the applicant and the child, meaning the child had no genetic relationship to either intended parent. Childcare proceeding were initiated and the child was removed from the applicants and was placed in a children’s home. The applicants were not allowed to have any form of contact with him. The applicants turned to the Court for the violation of Article 8 of the Convention alleging that the refusal of the Italian authorities to register the Russian birth certificates and the domestic court’s decision to remove the child infringed their right to respect their private and family life.

Before taking a look at the Court’s decision in this case another important distinction between this case and the case of Mennesson has to be drawn. In the Paradiso case the child was not considered to an applicant in this case that is because the Second Chamber considered that the intended parents had no standing to assert the right of the child before the Court since their legal relationship was not recognized by the Italian courts. As a consequence, the applicants did not had the possibility to challenge any of the State’s actions regarding the child’s interest.⁶⁶ The Second Chamber found that Article 8 is applicable, it noted that family life did exist between the child and the intended parent despite the fact that the time they spent together was a relatively short one and despite the absence of a genetic link. When assessing the balance between the competing public and private interest involved and the legitimacy of the State’s actions, the Court emphasized again the importance of the child’s best interest principle.⁶⁷ The Court concluded that Italian authorities failed to strike a fair balance between the competing interest and for that reason there has been a violation of Article 8 of the Convention. In a joint partly dissenting opinion, Judge Raimondi and Spano criticized the majority’s conclusion that there has been a violation of Article 8. They were not satisfied with the majority’s findings that Article 8 of the Convention is applicable,⁶⁸ and they noted that the consequences of this judgment amount to denying the “legitimacy of the State’s choice not to recognize gestational surrogacy”⁶⁹.They pointed out that the State’s freedom not to offer legal effect to gestational surrogacy has already been acknowledged by the ECtHR in the case of Mennesson v. France and Labasse v. France⁷⁰ and this new judgment would leave the case-law without effect.

The case was later referred to the Grand Chamber which rendered a substantially different judgment. Right from the start, the Grand Chamber noted that the case of Paradiso is different from the case of Mennesson, because the issue in question is one about the actions taken by the Italian authorities in separating the child from the applicants while in the Mennesson case, the discussion revolved around the legal parent—child relationship. In regards to the existence of the “family life”, the Grand Chamber based on the absence of a genetic link, the short period

66 Andrea Mulligan, ‘Identity Rights and Sensitive Ethical Questions: The European Convention on Human Rights and the Regulation of Surrogacy Arrangements’, Medical Law Review, Vol. 0, No.0, pp. 1-27, pg. 17

67 Case of Mennesson v. France, no 65192/11, para 81, Labassee v. France, no 65941/11, para 60

68 Ibid, para. 2

69 Ibid, para. 15

70 Ibid, para. 15

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17 of time that the applicants spent with the child and the uncertainty of ties from a legal perspective made the Court to conclude that conditions for a de facto family life have not been met.⁷¹ On the other hand, the Court considered that the impugned measures affected the applicant’s private life and therefore, the right to respect for private life protected under Article 8 was implicated. In contrast to Second Chamber, the Court assessed in details the aspect of the adoption, the taking of the child and it pointed out, by citing the case of Mennesson, that in cases where donor gametes and the recognition of legal relationships between parent and children born through surrogacy arrangements are in place the States enjoy a wide margin of appreciation. The Court observed that the present case touched on ethically sensitive issues such as “adoption, the taking of a child into care, medically assisted reproduction and surrogate motherhood” meaning that Italy enjoyed a wide margin of appreciation. The Court noted that unlike the Mennesson case, the issue of the child’s identity and the recognition of a genetic link did not arise in the Paradiso case.⁷² Also, in contrast with the Mennesson case, the Court observed that the applicants had no standing in arguing on behalf of the child that the state failed to provide him with an identity nor did they had any biological link with the child.⁷³ By approaching the margin of appreciation in this way, the Grand Chamber clearly repositioned this case as a case about surrogacy and assisted reproduction instead of State care, offering the State a wide-margin of appreciation like in the case of S.H. and Others v. Austria.⁷⁴

In light of these, the Court began its proportionality analysis. On one hand, while considering the public interest, the Court accepted that the Italian Government’s actions responded to the need to maintain the prohibition of surrogacy arrangements under Italian law, and to put an end to an illegal situation.⁷⁵On the other hand, as regards to the private interest, the Grand Chamber reaffirmed again that the child was not an applicant is the case. In addition, it also noted that the child was not a member of the applicant’s family in the light of Article 8 of the Convention. With other words, the private interest at stake was the intended parents’

interest in continuing the relationship with the child.⁷⁶ In conclusion, the Court decided that the Italian courts struck a fair balance between the different interests at stake, pointing out that the authorities had assessed that the child would not suffer irreparable damages from the separation.⁷⁷ In its conclusion, the Court noted that had the Italian courts agreed to the let the child stay with the intended parents, letting them become his adoptive parents: “would have been tantamount to legalizing the situation created by them in breach of important rules of Italian law”.⁷⁸ This last remark recalls the joint dissenting opinion of Judge Raimondi and Span in the Second Chamber, which drew attention to the risk of the Court’s judgment having the effect of denying the Member States the right to prohibit surrogacy arrangements on their territory.⁷⁹

71 Ibid, para. 157

72 Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para 195

73 Ibid, para. 195

75 Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para 204

76 Ibid, para.207

77 Ibid, para.215

78 Case of Mennesson v. France, Application No. 65192/11, 26 June 2014, para. 215