In the practice of the ECHR, an approach has been established that the concept of “private life” is broad and cannot be defined as an exhaustive list. It includes the right to establish and develop relationships with other people, the right to personal development and to self-determination (which, in turn, contains such elements as the right to gender identification, sexual orientation and sex life), the right to have or not to have children. As for the concept of “family life”, its content is not limited solely to the family based on marriage, and may include other relationships that are in fact matrimonial. This takes into account the following factors: cohabitation, the duration of the relationship, as well as whether the spouses in any way demonstrate a responsible attitude towards each other, for example, having gotten joint children. According to the ECtHR, relations arising from the use of assisted reproductive methods fall under the concept of private, including family life, since the right of a couple to conceive a child and the use of artificial insemination for this purpose is protected by art. 8 ECHR.
The French Court of Cassation recently announced its decision to seek an advisory opinion from the European Court of Human Rights in a case that may have important consequences for couples unable to conceive a child in a natural way. We are talking about litigation with a French family whose twins were born with the help of a surrogate mother in the United States. Since surrogacy is illegal in France, and a woman claiming parental rights over children is not their biological mother, French authorities refuse to accept American birth certificates stating the name of this woman.
In the application for an advisory opinion, the court asked for clarification whether the refusal to accept a birth certificate duly issued in a foreign country to a child born through surrogacy is a violation of the right to privacy, including family life in the framework of the ECHR. In addition, the court asked whether the State party would fulfill its obligations under the convention, allowing the intended mother to adopt the child without a foreign birth certificate certifying her as a mother.
Judicial jurisdiction was extended in August 2018 to allow the participating States to request the ECtHR in the form of an advisory opinion on the interpretation or application of the European Convention on Human Rights. In accordance with Protocol 16 of the Convention, appeals for advisory opinions should be considered by the judicial board of the Grand Chamber. If the Court considers it possible to satisfy such an appeal, it may invite the requesting party and any other party that it deems appropriate, to make written statements or to take part in the hearing. Although advisory opinions of the ECHR are not binding, they are part of judicial practice and, therefore, may affect the outcome of similar cases in the future.
Based on jurist.org