In the framework of a recent large-scale analytical study on surrogacy, the European Court of Human Rights conducted an extensive survey of almost all countries participating in the Convention - 43 out of 47! The findings are really impressive.
The survey showed that surrogacy arrangements are explicitly permitted in only nine of the 43 countries, they are tolerated in another 10, and explicitly or implicitly prohibited in the remaining 24. That’s quite a patchwork! The survey further found that in 31 of the countries — including some of those prohibiting surrogacy — a genetically connected intended father who conceived a child abroad via surrogacy could establish himself as the parent of the child in his home country. In 19 countries, the mother could also establish herself as the legal mother of a child born through surrogacy, even when she was not genetically related to the child. Unsurprisingly, the process for establishing the legal parent-child relationship varied by country. These included direct registration of a foreign birth certificate, adoption, or other court proceedings.
First, the Court was asked whether a country must allow the intended mother to be recognized as the legal parent of the child in a situation where the child is conceived abroad via surrogacy, the intended father was recognized as a legal parent to the child, and the mother is not genetically related to the child.
Second, if the recognition of the intended mother is indeed required, must it be by registration of the foreign birth certificate, or can the country instead require an adoption or some other proceeding?
As to the first question, the Court found that yes, the Convention requires that children have a right to recognition of their legal parent-child relationship with their mother. The court stressed that the best interests of the child were paramount, and that without the recognition of their legal relationship with their mother, the children may be placed “in a position of legal uncertainty within society.” Particularly, the children may be denied access to the mother’s nationality (in case when parents are citizens of different countries), they may not be able to inherit from their mother, and if their parents were to separate their mother may not have a right to a relationship with them, nor an obligation to support them.
However, on the second question, while the Court acknowledged that it was important for the uncertainty of the legal relationship between the mother and child to be as short lived as possible, it would not go so far as to require the direct registration of the details of the foreign-issued birth certificates. The Court determined that other means may be suitable, including requiring the intended mother to go through adoption proceedings. However, if adoption is the only legal avenue available to intended parents, then the whole procedure must be as quick as possible, so that the legal vacuum in which the child lives is kept to a minimum.
Italian lawyer and law professor Alexander Schuster shared his thoughts on the ruling. “This opinion expressly limited its scope to couples where the father has a genetic link to the child. If this is missing, the picture becomes highly uncertain.” Schuster explained that his major concern when he drafted and submitted a third-party intervention to the Court in this case on behalf of the Centre for Interdisciplinary Gender Studies at Trento University “was to draw parallels between discrimination against children born out of wedlock and children born through medically assisted reproduction.” His concern was not just with the treatment of children born by surrogacy, but also those born with the assistance of an egg or sperm donor. Discrimination for such families has been widespread. According to expert the legal patchwork in Europe is recreating a group of children that suffer severe discrimination. Fortunately, this opinion suggests that the Court will not allow that to happen again.”
So, it’s good news that the Court determined that it is a fundamental human right for these children to have a legally recognized relationship with their mother. It is not awesome that countries may continue to force an intended mother to jump through hoops to get there. But looking for the positive in Europe, we will place this solidly in the “win” category.
Based on Above The Law