Abstract
Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. This article examines how the European Court of Human Rights (ECtHR) deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will demonstrated that the Strasbourg Court has developed a nuanced case law that leaves it in the first place to the national authorities to deal with the complex issue of surrogacy, whereby it is nevertheless clear that further to the Strasbourg case law even if legislators rule out the possibility of surrogacy on their territory, they will have to find solutions to “‘regularise”’ the de facto situation of the child, taking into account its best interests.
Keywords
INTRODUCTION
Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. Undoubtedly, this topic touches upon the most intimate aspects of human life. Scientific progress, new ethical insights, and social evolutions have contributed to the proliferation of medically assisted procreation, of which surrogacy is one of the available techniques. Moreover, within the field of human rights law, surrogacy is gaining increased attention, in court as well as in academia. Although the European Court of Human Rights (ECtHR) has begun to develop a nascent case law on the topic, 1 much remains uncertain or subject to debate. 2
The contribution aims not to engage with the ethical and philosophical debate, which, indeed, touches upon fundamental issues. It is not hard to see that surrogacy raises questions relating to human dignity and the rights of women, in particular. Is it a matter of autonomy that women can accept to act as a gestational surrogate, or is it, rather, a matter of (commercial) exploitation of women? What about the consent of gestational mothers and the emotional and social circumstances in which they express their will? One may also contemplate the idea that, through surrogacy, children are treated as commodities. 3 The discourse can also extend to the commodification and commercialisation of the human body. The perspectives are manifold, and the (political) discussion is passionate, sometimes compassionate, and occasionally heated, but always complex. 4 Reasonable people can hold very different views on the topic, and finding a consensus or common ground is far from easy.
These differences in viewpoints explain why the practice of surrogacy, both commercial and altruistic, gestational and traditional, is subject to different legal treatment in many States. The distinction between traditional and gestational surrogacy lies in the genetic link between the child and the surrogate mother. If a woman's eggs are inseminated with donor sperm (or the sperm of the intended father), and she carries the child solely on behalf of the intended parents, traditional surrogacy is at stake. If, on the contrary, an embryo is created with the eggs of the intended mother (or a donor) and the sperm of the intended father (or a donor), and carried by a surrogate mother, we are dealing with gestational surrogacy. 5 Distinguishing commercial surrogacy from altruistic surrogacy is rather complex. It could be argued that commercial surrogacy entails a financial element to the surrogacy arrangement, wherein the gestational mother is paid for her services. 6 Altruistic surrogacy, on the other hand, implies that, although there is no commercial interest and the surrogate mother is not paid for carrying the child, the intended parents may compensate her for ‘reasonable expenses’. 7 Hence, it could be argued that the payment of money as such is not the essential difference between the two. Commercial surrogacy would, in that view, include the intervention of ‘profit-making agencies’ and the existence of legally enforceable contracts. 8 Other authors argue that the distinction is, in fact, morally arbitrary. 9
In Europe, understood here as the area of the Council of Europe, there are States where surrogacy is forbidden (for example, Germany, France, and Switzerland), whereas others allow only for altruistic surrogacy (for example, the UK, the Netherlands, and Portugal). Some States will allow for commercial forms of surrogacy (that is, Russia, 10 and Ukraine 11 ). Other countries would tolerate (some forms of) surrogacy through the technique of subsequent adoption, including both States where (some forms of) surrogacy are tolerated or permitted (including the Netherlands and Portugal) and States that prohibit them entirely (to name a few, Bulgaria and Croatia). 12
In recent times, a number of cases have been brought before the ECtHR. As there is no consensus amongst member States on the lawfulness of surrogacy or the legal recognition of the child-intended parent relationships, the Strasbourg Court affords States a wide margin of appreciation, which is typical of contentious topics. Under the European Convention on Human Rights (ECHR), States have considerable discretion as regards the regulation of surrogacy and the recognition of child-parent relationships. Yet, a problem needs to be addressed: the consequences of surrogacy tourism. It is one thing to allow States to outlaw domestic surrogacy; of course, it is quite different to deal with cases where citizens travel to a State where surrogacy is permitted, and intend to return with the child to their home State. It could be argued that this is a prototypical form of fraude à la loi (evasion of law), but it should also be stressed that the rights of newborn children are at stake in these circumstances.
This article examines how the ECtHR deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will be argued that the Strasbourg Court, in reality, uses soft language, seemingly leaving much discretion to States regarding the regulation of surrogacy. At the same time, its underlying message is very clear: in practice, States must legally recognise the consequences of cross-border surrogacy. One must consider the effectiveness of maintaining rigid surrogacy regulations when surrogacy tourism has become a means to circumvent strict legislation. In other words, this article argues that domestic bans on surrogacy are primarily formal and symbolic. While a total ban on surrogacy may express the law's (and possibly society's) take on the topic, the article questions their efficacy in preventing the practice of surrogacy, especially because of the phenomenon of cross-border surrogacy.
(CROSS-BORDER) SURROGACY IN THE ECTHR'S CASE LAW AND ADVISORY OPINIONS
The case law of the ECtHR, including decisions, judgments, and one advisory opinion on surrogacy, is still rather limited and nascent. 13 One can expect that case law will evolve to the extent that the practice of surrogacy and the social attitudes toward it further develop.
The Strasbourg Court's approach to surrogacy is established in five important stages.
Laying the basis: Mennesson and Labassee
The first two cases in which the Court had to consider surrogacy were ‘twin’ cases of the same date against France, namely Mennesson 14 and Labassee. 15 They constitute the starting point of the Court's approach to the issue of gestational surrogacy.
The cases concerned two French couples facing infertility challenges. The Mennesson couple resorted to in vitro fertilisation, using the man's gametes and oocytes from a donor, with the subsequent embryo transplantation into another woman's womb. They entered into a surrogacy agreement under Californian law. In Labessee, the circumstances were notably similar. In this instance, the couple agreed a surrogacy arrangement under the law of Minnesota, an arrangement later affirmed by a local court order. In both cases, official birth certificates were issued, legally recognising the relationship between the intended parents and the children born from the surrogacy arrangements. For the fathers, this was to be expected, given the use of their sperm. For the mothers, this was the result of the respective surrogacy agreements.
Upon their return to France, both couples wanted to have their child's foreign birth certificates registered in the French civil registries. It was the beginning of a very long and complex legal journey that ended before the French Cour de cassation (Court of Cassation). That Court decided that the surrogacy agreements violated the French public policy (‘ordre public’) and denied recognition of the parent-child relationships. Denying recognition of the foreign birth certificates in France would not question the parental affiliation under the laws of Minnesota and California, nor would it prevent the children from living with their parents, as per American law, in France. 16 Thus, the Cour de cassation held that the refusal to recognise the relationship was not a violation of the right to private and family life, as protected by Article 8 of the ECHR, nor of the Best Interest of the Child, as protected by Article 3 of the Convention on the Rights of the Child (CRC). Not surprisingly, an application with the Strasbourg Court was filed in both cases to appeal the decisions of the Court of Cassation. The Strasbourg Court delivered two path-breaking judgments.
Firstly, and notwithstanding the fact that the French Government did not raise an objection regarding the applicability of Article 8, the Court deemed it necessary to first consider whether the issue at stake fell under the concepts of family and private life. In this regard, the Court considered that ‘family life’ relates to the existence of a family and was a matter of assessing the de facto circumstances. The Court understood the daily reality of the family to be of greater importance, rather than the formal legal relationship between parent and child. 17 Regarding private life, the Court stressed that, while this notion, albeit not precisely definable, 18 encompasses not only the physical aspects of identity, but also the social aspects. The parent-child relationship certainly constitute an aspect of one's identity, protected by private life. 19 Therefore, it follows that Article 8 applies to cases in which domestic authorities refuse to transcribe foreign birth certificates into national civil registries.
Once it was decided that the Convention was applicable, the Court followed the traditional reasoning method under Article 8. First, the legality of the interference (that is, the refusal to transcribe) was assessed, but there was hardly any discussion on the legal basis. 20 According to the Court, the legitimate aim of the refusal to transcribe was the protection of the rights of others and the protection of public health. It is noteworthy that the Court did not follow the argument of the French Government, which argued that the prevention of crime was at stake. In this respect, the Strasbourg Court observed that it was not an offence for French citizens to use the technique of surrogacy in States where it is a lawful medical practice. 21 As is often the case, the proportionality test was at the heart of the Court's reasoning. The Court acted cautiously, first emphasising, unsurprisingly, that, in the absense of a European consensus on the very complex issue of surrogacy regulation, States are afforded a wide margin of appreciation. Nonetheless, it is imperative to recognise that such a margin is not boundless and necessitates oversight by the Strasbourg Court. In these cases, this meant that the Strasbourg judges assessed whether the domestic French courts, particularly the Court of Cassation, had duly examined all interests at stake. The Strasbourg judges stressed that ‘the (international) public order exception’ – on which the French authorities could rely, arguing that surrogacy is contrary to fundamental societal values – is important but cannot, by that fact alone, be overriding. 22 Other important principles, such as the best interest of the child, must be duly considered as well.
Regarding the parents’ claims, the Strasbourg Court held that the difficulties they had encountered due to the absence of transcription had not been ‘unsurmountable’. Moreover, the Strasbourg Court found that the intended parents and the child could enjoy family life together in France. There was no reason to think that the local authorities would undertake steps to separate them based on their status (or, rather, the absence of a specific status) under French law. 23 Some scholars concluded that the Court's findings were rather harsh on the parents, showing ‘a clear lack of sympathy for the commissioning parents’. 24
Instead, the judges took a child-centred approach. The refusal of the transcription of the California and Minnesota court orders had serious consequences for the children. Their parent-child relationship was not legally recognised, resulting in difficulties in obtaining citizenship, and important issues of inheritance were equally at stake. The Court held that, on balance, given precisely the importance of the child's interests, there was a violation of the child's right to personal life. In Mennesson, the Court explicitly held that it had to bear in mind ‘the essential principle according to which, whenever the situation of a child is in issue, the best interests of that child are paramount’. 25 The exact meaning of judgments, however, has proved difficult to grasp. Some authors criticised the Strasbourg Court for its ambiguity, contending that the ECtHR only mandated the recognition of the parenthood of the biological father, to the exclusion of the intended mother. 26 März, however, finds this an ‘inaccurate’ reading of the judgments. Referring to the case of D. v France, 27 he highlights that the Court did not primarily sanction the refusal of the transcription per se; rather, it emphasised that, in addition to the denial of transcription, there were no alternative means available for the children to obtain legal recognition of their parent-child relationship in France. 28
The line of reasoning adopted by the Court in Mennesson and Labassee was further confirmed and finetuned in other cases. In Foulon and Bouvet v. France and Laborie v. France, the Court argued that the applicants found themselves in similar legal circumstances as those in Mennesson and Labassee. Therefore, it applied the same reasoning. 29 However, as Ni Shúilleabháin observed, that was perhaps an all too rapid conclusion. This author saw two important differences between Foulon and Bouvet, on the one hand, and Mennesson and Labassee, on the other.
First, in Foulon and Bouvet, single-parent filiation was at stake, 30 whereas in the latter, the claims concerned the parenthood of the respective heterosexual couples. Second, in Foulon and Bouvet, it is likely that the ova of the Indian surrogate mother was used, as no reference is made to any donor, contrary to Mennesson and Labassee. 31 This is not to say those elements should have led to a different outcome. However, this author contends that the Strasbourg Court could have mentioned these differing factual circumstances explicitly in its judgment, albeit to explain why those factors were not relevant. It would have been enlightening to thoroughly understand the Court's justification for its finding. In any event, all doubts can be dispelled as, a few years later, the Court decided in D.B. and Others v. Switzerland, after having recalled that the best interests of the child cannot depend on the sexual orientation of its parents, that the absence of any possibility of recognition between an intended father and his child during a considerable period of time, was a violation of the protection of the right to private life of the child. 32 Although, the Court did not find a violation of family life of the intended parents, and it could be argued that this finding is based on, essentially, two arguments. First, the non-recognition of the foreign birth certificate did not bring about practical hindrances, going beyond the limits of Article 8 ECHR, for the enjoyment of family life. 33 Second, and more importantly, the Court clearly took issue with the applicants’ behaviour as they knowingly circumvented national law to engage in a practice that violated Swiss public order. 34
Adding complexity to the discussion: Paradiso and Campanelli
The next important step in the Court's case law on cross-border surrogacy was the Paradiso and Campanelli judgment, sometimes considered an ‘atypical’ case. 35 Indeed, in this case, two Italian citizens had a surrogacy agreement with a Russian woman, which eventually led to the birth of the child. A donor would donate the egg, while Mr Campanelli's semen would be used for fertilisation. When the couple travelled back to Italy, the local authorities refused to register the birth certificate as they were informed that the (Russian) certificate contained false information. The certificate listed Mr Campanelli and Mrs Paradiso as the parents of the child. Yet, a DNA test later revealed no genetic link between the child and the intended parents. Criminal proceedings were started against the couple for misrepresentation of their civil status, the use of false documents, and the violation of the applicable domestic rules on adoption. The Italian authorities also ordered that the child be removed from the parents’ home and placed in a children's home, where the child stayed for 15 months, before being placed with a new family.
When the case appeared before the Strasbourg Court, the Chamber first decided whether the parties had standing to act on behalf of the child. The Chamber decided that the applicants did not have legal standing due to the lack of biological ties between the applicant and the child, the fact that the child had been placed with a foster family in view of adoption by another family, and that the couple had not provided any signed authority recognising their relationship to the child. 36
At first glance, the question of standing seemed a purely technical and formal point. However, upon a closer look, it had a decisive influence on the outcome of the case. In fact, it is important to remember that in the seminal Mennesson and Labessee cases, violations were found with regard to the private life of the children, but not with regard to the family life of the intended parents. So, by denying the legal standing of the intended parents to act on behalf of the child, the outcome of the case was already heavily affected. Moreover, it can be questioned whether the issue of standing was not so much related to the merits of the case to the extent that it needed to be addressed during the assessment of the substantive claims. If, for instance, the Italian authorities had overstepped their margin of appreciation, it would have become much more complicated to argue that the applicants could not file a complaint on behalf of the child.
The Chamber then accepted that, notwithstanding the relatively short period of time spent together, the applicants could claim ‘family life’ precisely because the de facto family ties were decisive. Moreover, the fact that the intended father agreed to undergo a DNA test gave evidence of his will to establish paternity. Therefore, his right to private life was at stake. 37 Although the Court seemed to understand the difficult emotional situation of the intended parents—Mr Paradiso's good faith was not questioned 38 —it found that the Italian authorities had not been unreasonably strict in assessing the paternity issue. Nonetheless, the domestic decision to remove the child from the care of the intended parents and place it in a children's home had been taken without due consideration of the best interests of the child. Such extreme measures ought to be taken as a last resort only. The Chamber found a violation of Article 8 of the ECHR. 39
The Italian Government then “appealed” the Chamber's decision, referring it to the Grand Chamber. The Grand Chamber found no family life in the case at hand, considering the absence of a biological bond between the applicants and the child, the short duration of the cohabitation, and the uncertainty of the legal relationship. 40 The Grand Chamber did not find a violation of private life, either. It found that a fair balance had been struck between the public interests (which are the prevention of disorder and the protection of the rights of others), and the private interests of the couple. Remarkably, the Grand Chamber found that the interests of the child had been given due consideration. 41 It is clear, from the wording of the judgment, that the Court gave particular weight to the fact that the intended parents were themselves at the origin of the extremely painful situation. 42 Not recognising the “interests” of the intended parents echoes the Nemo auditur turpitudinem suam allegans principle: no rights can be claimed by those who are at the origins of a “fraudulent” situation.
Elucidating Mennesson and Labessee: Opinion 2018-001
In 2019, the Grand Chamber gave its first Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother. The legal basis for this Opinion was Protocol No 16, which aims to enhance good cooperation between domestic jurisdictions and the Strasbourg Court. One of the rationales behind the Opinion was to improve the understanding of national judges of the ECHR and the Strasbourg Court's interpretation of it. In this way, it was hoped that fewer cases would come before the Court, and those that were referred to the Court would be subject to an accelerated decision, as the Court's opinion on the matter had already been provided. 43
Opinion 2018-001 is particularly relevant in the context of this article, not because of its novel nature, but mostly because it concerned the consequences of the Mennesson case in France. Following the ECtHR'sjudgment, the French Court of Cassation accepted the transcription of birth certificates of children born by surrogacy with regard to the biological father, as indicated by the birth certificate, and the surrogate mother, who was indicated as the mother. 44 Later, the Court accepted that the intended mother, or the non-biological father (in the case of a same-sex couple), could establish a legal link with the child through adoption. 45
The Mennesson couple also pursued domestic procedures after winning the case in Strasbourg. In a new legal saga, the question now was whether the authorities could proceed to a partial transcription of the foreign birth certificate, thereby confirming the child's link with the biological father, whilst not transcribing the part related to the other intended parent, and thus in line with the Convention.
46
On the basis of Protocol No 16, the French Court of Cassation thereupon decided to ask two questions to the Strasbourg Court. The questions read as follows:
By refusing to enter in the register of births, marriages and deaths the details of the birth certificate of a child born abroad as the result of a gestational surrogacy arrangement, in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child's biological father, is a State Party overstepping its margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In this connection should a distinction be drawn according to whether or not the child was conceived using the eggs of the ‘intended mother’? In the event of an answer in the affirmative to either of the two questions above, would the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship, ensure compliance with the requirements of Article 8 of the Convention?
47
In its Opinion, the Grand Chamber clearly indicated, from the outset, that the central issue pertained to the recognition of the parent-child relationship between a child born through gestational surrogacy and an intended mother (whose eggs were not utilised).
48
The Grand Chamber found that in such a scenario, if the legal parent-child relationship with the intended father (who is also the biological father) has been recognised in domestic law, the law should also provide a ‘possibility of recognition’ of the legal parent-child relationship with the intended mother, identified in the foreign birth certificate as the mother. This recognition is implied by the child's right to respect for its private life. However, the recognition does not necessarily require transcription of the foreign birth certificate. Alternative means, such as the adoption of the child by the intended mother, are also deemed acceptable. The Court's paramount concern is that the procedure can be ‘implemented promptly and effectively, in accordance with the child's best interests’.
49
In the subsequent C. E. and others v. France case, the Court then found that, regarding the intended second parent (in this case, the mother), there was no violation of Article 8 concerning the private life of the children. Consistent with the earlier Opinion, the Court noted that the genetic paternity had been recognised through the transcription of the foreign certificate. As to the recognition of a legal connection with the intended mothers, the possibility of adoption was deemed to respect the rights protected by Article 8. 50
It is noteworthy that, following C. E. and others, the French Court of Cassation then dramatically changed its case law. Strikingly enough, the surrogacy saga in Strasbourg started because of the refusal by the French authorities, backed by the Court of Cassation, to transcribe foreign birth certificates that indicated the intended parents as legal parents. Then, following the Advisory Opinion and the subsequent case law, it appeared that Strasbourg accepted a legal framework in which the legal parenthood of the genetic parent is recognised, and the link with the non-genetic parent can be established by procedures other than automatic recognition. One could describe this as a middle position. Yet, in later cases, the French Court of Cassation went beyond what the Strasbourg case law imposed. 51 It held that the partial transcription of a foreign birth certificate, whereby the legal fatherhood of the biological father was registered in French law, but where the transcription of the other (intended) parent was refused, violated the right of private life of the child and disregarded its best interests. 52 As such, the French Court of Cassation proved to be more liberal than the Strasbourg Court. This attitude was criticised by critical scholars, who did not shy away from harshly criticising the French Court, purporting that it would have handed down, according to its critics, an ‘arrêt de règlement’ (a regulatory ruling).
Under Article 5 of the French Civil Code, judges are not allowed ‘to decide cases submitted to them by way of general and regulatory provisions’. 53 Critics argued that this is what the Court of Cassation would have done by deciding, in lieu of Parliament, how to implement the Strasbourg Court's case law under French domestic law. 54 Needless to say, from a perspective of separation of powers (it is a truism to stress how much this concept, also in its very strict interpretation, haunts French law), such a practice is open to questioning.
Getting things sharp: Valdís Fjölnisdóttir and others
The case of Valdís Fjölnisdóttir and Others v. Iceland offered a possibility for the Court to further develop its view on surrogacy. As we have seen, there are essentially two scenarios in the Strasbourg case law. First, there is the Mennesson-type of surrogacy, which assumes that there is a biological link with one of the intended parents and that the foreign surrogacy procedures are respected. In such circumstances, the best interests of the child impose duties on States to provide some form of recognising the legal parenthood of the intended parents. If, on the contrary, there is no biological link and there are doubts about the regularity of the surrogacy procedure, per Paradiso and Campanelli, no such obligations exist.
The question then is, of course, what would happen in a scenario in which there is no biological link between the intended parents and the child but where the rules on surrogacy have been followed? Valdís Fjölnisdóttir and Others offer a perfect illustration. 55 In this case, a female same-sex couple in California engaged in a surrogacy with donor gametes. According to local law, both intended parents were registered on the birth certificate as parents. Upon return to Iceland, the Icelandic authorities refused the record. This meant that the child was considered to be a foreign citizen and an unaccompanied minor. A foster programme was then set up, as a result of which the child was fostered by one of the intended mothers (and her new spouse), with equal access given to the second intended mother (and her spouse) — the couple had divorced in the meantime. Before the Strasbourg Court, the argument was made that the refusal to file the intended parents as parents in the Icelandic registries amounted to a violation of the right to respect for private and family life. The Court then found that family life existed between the intended parents and the child. Although there was no biological link (as in Paradiso and Campanelli), there was, unlike in that case, uninterrupted care of the child by the applicants since he was born. The Government did not contest the quality of that bond.
Eventually, the Court found that Icelandic law did not violate the right to family life, despite the authorities’ refusal to register the birth certificate was not registered. The Court justified this decision by arguing that there were no practical hindrances in the enjoyment of family life and because the bond between the applicants had been secured through another mechanism (that is, foster care). 56 The question of the private life of the child was not addressed by the Court as it had not been raised before the domestic courts. This case is remarkable as the Court only found violations of Article 8 with regard to the private life of children. 57
S.H. v. Poland: defining the states
Finally, we should question which legal orders are legally obligated to recognise the ‘international’ surrogacy agreements in the case of transnational surrogacy. In the cases discussed above, the scenarios were rather straightforward. The intended parents resided in a State where surrogacy was forbidden and, therefore, travelled to another State where it was allowed. The question then becomes, to what extent, and under what circumstances, should the legal status acquired under foreign law be respected in a domestic legal order? This question could also extend to third countries, for example, States where neither the surrogacy has taken place nor the intended parents reside.
S.H. v. Poland offers an interesting starting point for this reflection. A same-sex couple had concluded a gestational surrogacy agreement under Californian law, which led to the birth of twins. The couple was living in Israel and had Israeli citizenship, although one of the partners, the biological father, also had Polish nationality. He wanted the children to similarly benefit from Polish nationality. So, they requested the recognition of the parent-child relationship in Poland, but were refused. As a result, the acquisition of Polish citizenship by descent was impossible.
The Strasbourg Court did not find any issue here and decided that the application was inadmissible. The Court determined that no issue arose under Article 8. The Court considered that the applicants had never lived in Poland, nor held US/Israeli citizenship, and had not informed the Court of any practical negative consequences in their country of residence arising from being denied Polish citizenship. Furthermore, even if the Court conceded that there had arisen some practical unpleasant consequences, this would not have amounted to the minimum threshold of Article 8. 58 The Court noted that the link between parent-child was recognised in the country of residence. 59 As such, the Court opined that denial of Polish citizenship by the Polish authorities had no bearing on the private, nor the family life, of the applicants.
CRITICAL POINTS
It follows from the Court's approach that three issues seem to be of particular importance to the discussion on the compatibility of cross-border surrogacy and the ECHR: the biological link with one of the parents, the interests of the child, and the role of family and private life.
The biological link with (one of) the parent(s)
What is striking, in the comparison of the various cases, is the role the Court attributes to the biological link with one of the intended parents. It can be seen from Labassee, Mennesson, and the Advisory Opinion, that if there is a biological link with at least one of the intended parents, and if the law of the State of the surrogacy agreement is respected, the protection of the private life of the child necessitates the recognition or establishment of the parentage between the child and the genetic father. This can be through transcription of the foreign birth certificate, recognition of paternity, adoption, or possession of status. 60 As for the second parent, a possibility of recognition should be made available, but, again, this need not be the transcription of a birth certificate, as long as other prompt and effective possibilities, such as adoption, exist. The Court, however, failed to state that, if some form of recognition exists of the relationship between the intended parent (one of whom is also the biological father) and the child, the birth certificate must immediately and automatically mention them as the child's legal parents. If the legal system confers parenthood to the gestational mother and her husband, this is not, per se, a violation of Article 8, provided that the intended parents are given some form of legal relationship between the child and the intended parents. 61
Additionally, there is the scenario in which no such genetic link exists. The two leading cases here are Paradiso and Campanelli and Valdís Fjölnisdóttir and Others. They reveal that, in a scenario in which there is no biological link between the child and the intended parents, the Court is much more reluctant to find a violation of Article 8. In the Icelandic case, the alternatives (that is, foster care) and the continued bond between the parties were considered to be valid solutions for the protection of the right to family life.
The Paradiso and Campanelli case is the most tragic of all. This author cannot refrain from thinking that almost all elements that drove the Court to finding no violation were elements that were not attributable to the applicants. For example, the mere fact that they found themselves in a different legal circumstance to Mennesson and Labessee seems to be beyond their will. In fact, the couple intended to use Mr Campanelli's sperm. Had this been possible, there would have been a genetic link between the child and the intended father.
Similarly, there seemed to have been doubts about the couple's compliance with the applicable legal rules. It is doubtful whether this is something the applicants can be held accountable for. If a couple travels abroad for a surrogacy operation, they are reliant the local services to respect and implement the domestic procedure. It seems a little harsh to use the ambiguity of the procedure against them. Finally, the rather limited duration of the time the child and intended parents spent together was the result of the intervention by the Italian authorities. Again, it seems incorrect to use this against the parents. Ultimately, the Court's judgement is arguably flawed as it was based on a logical fallacy – that is, whether the Italian authorities respected ‘family life’. If there was no such life in the case at hand, the authorities were justified in separating the intended parents and a seemingly unaccompanied minor. This means that the ECtHR needs to, first, determine whether there was such life. The Strasbourg Court's judgment inverted this reasoning. It based itself on the consequences of the acts of the national authorities, such as the short time of cohabitation, the lack of standing, and so forth — to conclude that there was no family life. In fact, the Court's reasoning is, seemingly, an illustration of the affirmation of the consequence.
In this respect, Valdís Fjölnisdóttir and Others is, arguably, a more balanced case. As März points out, it is intuitively understandable why a distinction is drawn between surrogacy with and without a genetic link. The distinction is particularly significant because, in the absence of such a link, surrogacy is akin to adoption. One could imagine surrogacy without a biological link as a potential alternative to adoption. 62 It is telling that, in Paradiso and Campanelli, the spouses faced accusations of not adhering to the rules on international adoption. There is, however, another element to the discussion. The primary difference between surrogacy without a biological link and adoption appears to be method of conceiving the child. In the case of adoption, the child is born and, for various, sometimes tragic reasons, given up for adoption. However, when the child was conceived, the intention would not have been to place it for adoption. In cases of surrogacy without a biological link, it could be argued that the very conception of the child was motivated by the desire to create a child for ‘adoption’. Ethically, this raises questions and explains why surrogacy without a biological link aligns more closely to surrogacy with a biological link, than to adoption. From a legal perspective, however, the comparison must be assessed against the principles of the best interests of the child and non-discrimination.
The interest of the child and non-discrimination
In Mennesson and Labassee, the Court held that, in cases of cross-border surrogacy, the protection of the best interests of the child is of paramount concern. It would, therefore, be interesting to assess whether the Court's distinction between surrogacy with and without biological links is compatible with the best interests of the child, read together with the principle of non-discrimination.
In the cases discussed thusfar, the Court paid close attention to the situation of the children and took into consideration the risks of statelessness, parentlessness, and inheritance. 63 Similar risks can be at stake in the absence of a biological link. The case of Valdís Fjölnisdóttir and Others illustrated that the Court accepts that, in such a scenario, other alternative solutions can be provided, such as foster care.
Certainly, one could argue that there exists an objective distinction between the two types of cases—the biological link. The question arises as to whether this criterion is robust enough to justify such a distinction. Arguably, when considering the rights sought by the intended parents, making a distinction might be relevant. However, from the perspective of the rights of the children, doubts emerge regarding the continued validity of this distinction. 64 Essentially, the crux of the matter is whether it is acceptable for the rights of children to depend on a genetic link with their intended parents, and, moreover, whether it is acceptable that the situation of children is to this extent determined by the actions and behaviour of their parents. 65 The latter is the key question at hand, as articulated by Judge Paul Lemmens in his concurring opinion in Valdís Fjölnisdóttir and Others. He astutely observed that the adverse consequences of a lack of recognition of the legal relationship between a child and intended parents are evidently the same, regardless of whether a genetic link exist. Justifiably, he questions ‘whether the legal limbo in which a child finds itself can be justified on the basis of the conduct of the intended parents or with reference to the moral views prevailing in society’. 66
Parallels can be drawn with the famous Marckx case, 67 wherein the Court was tasked with evaluating the compatibility of Belgian family law with the ECHR. The case concerned the distinction between children born within marriage and children born out of wedlock when applying inheritance rights, recognition of affiliation, and family relations. As complex as the case may be, 68 the fundamental principle was clear – Belgian law could not make such a distinction without violating the rights of the mother, the child, or both. The old rules of the Civil code, which distinguished between ‘legitimate’ and ‘illegitimate’ children, heavily relied upon traditional conceptions of procreation, marriage, and the relationship between the two concepts. The case made the point that, even in a society strongly disapproving of conceiving children outside wedlock, regardless of the validity of the reasons to do so, it would be highly problematic to impose the consequences of the perceived ‘sins’ of the parents on the children.
Similar circumstances arise in the case of surrogacy. There exists national legal orders that prohibit surrogacy, and some intended parents may wilfully circumvent this interdiction by travelling abroad to States with more liberal surrogacy regimes. The question thus arises whether, upon their return to their home State, the children resulting from surrogacy arrangements should be bestowed a legal status different to those of children with biological ties to one, or both, of their parents. This is a question of non-discrimination that the Court cannot continue to avoid addressing in future case law.
In it's a more recent case, the Court recalled another element of the child's best interests. Referring, amongst others, to the position the Grand Chamber timidly adopted in its Advisory Opinion, 69 the Court explicitly highlighted in C v. Italy that the best interest of the child implies that, whatever the method of recognising the link between the child and the intended parent(s), legal authorities must allow for recognition within a reasonable time. Leaving the child in a legal limbo runs counter to its best interests. 70
The discussion on family and private life
There is a third point that deserves more attention. It is striking that, in the ECtHR's case law on surrogacy, the aspects of ‘private life’ and ‘family life’ are not systematically addressed. The Court did not find any violation of the right to family life in the leading cases of Labassee, Mennesson, Paradiso and Campanelli, and Valdís Fjölnisdóttir and Others. Evidently, the Court has never found a violation of family life in the cases of surrogacy discussed. Nor did the Court find a violation of private life in the seminal cases of Mennesson and Labassee, with regard to the children's private life. In Mennesson, the Court held: Private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship …; an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned (…). As domestic law currently stands, the third and fourth applicants are in a position of legal uncertainty. While it is true that a legal parent-child relationship with the first and second applicants is acknowledged by the French courts in so far as it has been established under Californian law, the refusal to grant any effect to the US judgment and to record the details of the birth certificates accordingly shows that the relationship is not recognised under the French legal system. In other words, although aware that the children have been identified in another country as the children of the first and second applicants, France nonetheless denies them that status under French law. The Court considers that a contradiction of that nature undermines the children's identity within French society.
71
In this respect, the legal reasoning in the existing case law is insufficiently thought through. Admittedly, the consequences of not being recognised as a parent may be less dramatic for the parent. Statelessness is not an issue for the intended parent. Nor will parentlessness be at stake. However, the moral impact of not being legally recognised as a parent is threatened. The question could be relevant in the field of inheritance law. Being a father myself, I cannot help but confirm how much being a parent is an important part of my identity. I find it very hard to defend that, whereas the relation between child and parent would be at the centre of one's identity, the reverse relation, parent-child, would not be part of one's identity. That is, of course, not to say that the right to the protection of the intended parents’ private lives is necessarily violated when there is no legal recognition of transborder surrogacy parenthood.
Nevertheless, this article contends that the issue has to be raised. In the recent A.M. v. Norway case, the concurring Judge O’Leary clearly stated that child-parent relationships are ‘a two-way street’. 73 She uses the argument to underline that the refusal of recognition of the parent has an impact on the rights of children, and it follows that decisions concerning the status of children can also have an impact on the rights of parents.
Similarly, Bracken argues that the Court had to take Article 3 of the CRC (Convention on the Rights of the Child) into consideration in Valdís Fjölnisdóttir and Others. 74 Had it done so, the Court would have been able to utilise the principle of the best interests of the child so as to include the aspects of private life in its discussion on the rights of the child. Judge Lemmens hinted, in his concurring opinion, at the discussion on private life, but then observed that, as the parties’ reasoning relied on family life, there was no reason to go into the private life discussion. 75 Bracken regrets this and argues that considering the best interests of the child would imply a discussion on private life, and would, ultimately, have led to a discussion on the child's rights to identity. As the margin of appreciation granted to States in such intimate matters (that is, those closely linked to the heart of one's identity) is far more restricted, the leeway for the Icelandic authorities would have been more narrow. Ultimately, this could have led to a different outcome for the case. 76
Although Bracken's arguments are convincing as to the principles at play, there is a technical reason why this criticism can only be voiced moderately. The ECtHR is only competent in assessing whether States have respected the ECHR. Admittedly, the Court often refers to other texts for inspiration. Nonetheless, it ultimately relies on the Convention. It would be challenging to argue that the Court had to include the CRC in its review due to the absence of a binding legal link between that Convention and the Court. At best, the criticism could be that national authorities are obligated to respect the CRC. Yet, it does not fall within the purview of the ECtHR to assess whether domestic authorities have fulfilled their obligations under the CRC.
THE UNDERLYING TRADE-OFF: WHAT THE COURT DOES NOT DARE TO SAY
The fundamental question the ECtHR faces in cases of transborder surrogacy is very well summarised by Judge O’Leary: By entering a surrogacy arrangement abroad, which practice is not lawful in their own State, an intended parent embarks on a legally precarious journey. States cannot necessarily be held accountable for what may subsequently unfold, and too often the cases before the Court reveal the risk that children become the victims of well-intentioned but desperate and, at times, conflictual parental projects.
77
Yet, and here is the nub of the problem, if States adopt a restrictive policy, they have to maintain it. In general, this means that people who do not respect the rules should accept the legal consequences of not respecting the rules. Often, it is the case that they will have to be ‘sanctioned’ – not necessarily through the application of criminal law, but, at least, by enjoying the benefits of their illegal action. However, in the case of cross-border surrogacy, the relationship between the restrictive domestic legal system and the citizens is not only of concern, but also of the rights of the children born out of surrogacy. The Strasbourg Court is well aware that it has to navigate between these two concerns. Its role is to verify whether (…) the domestic courts duly took account of the need to strike a fair balance between the interest of the community in ensuring that its members conform to the choice made democratically within that community and the interest of the applicants – the children's best interests being paramount – in fully enjoying their rights to respect for their private and family life.
80
In contrast, whenever States want to rule out surrogacy, they cannot turn a blind eye to its consequences. Some scholars are quite straightforward on this point. Fenton-Glynn stated: ‘We must accept that once a child is born, attempting to regulate surrogacy is useless.’ 82 She predicted a ‘bleak future’ for everyone wanting to prohibit surrogacy completely. In her view, the Court's case law clearly imposed an obligation to convert the genetic tie between an intended parent and a child into a legal one. 83
Other scholars are more reluctant. März concedes that States face a ‘Herculean task’ when regulating international commercial surrogacy. 84 He believes States will have to adopt a ‘comprehensive and consistent framework’ 85 in which, on the one hand, the dangers of surrogacy tourism are underscored, while, at the same time, the best interests of the child are protected. The question, however, is how this framework should look, and whether, given the state of play of the case law, it is still possible for domestic regulations to be more or less restrictive. As Bollée and Haftel observe, albeit within the specific French context, the only objection standing in between intended parents and cross-border surrogacy are the costs of the operation. 86
On the other hand, critical scholars like John Tobin, who show little sympathy for (international) surrogacy, contend that there are possibilities for prohibitionist States to ‘avoid’ surrogacy terrorism. The conclusion is that there are not many ‘legal’ alternatives. International treaties could be a solution, but, given the lack of consensus on the issue, there are two other possible scenarios. 87 In one instance, an international treaty would outlaw surrogacy worldwide. However, this idea is rather unlikely to become a reality as it would imply that those States that allow it at present join the prohibitionist States. Furthermore, it does not fully eradicate the problem: as long as there is one State allowing surrogacy, cross-border surrogacy would still be a reality (albeit, to a lesser extent).
The other option is a treaty that would regulate surrogacy. Again, this does not adequately solve the problem. As Tobin notes, this would require prohibitionist States accept, as a matter of principle, international surrogacy, and then allow for it to be further regulated, but not banned in entirety. 88 This is as an unlikely reality as the first option and a similar issue arises of the consequences of not respecting the circumstances under which surrogacy is allowed. International regulation cannot avoid ‘irregular’ surrogacy, which, by definition, would be surrogacy taking place outside the legal framework. Children born out of this kind of surrogacy are to be taken care of according to their best interests, which is exactly today's problem.
Tobin stresses the need for ‘prevention’ and ‘deterrence’. If a prohibitionist State wants to effectively uphold its ban on surrogacy, it should invest in ‘education’ and ‘awareness-raising’ to deter its citizens from engaging in cross-border surrogacy. As important as this may be, it does not solve the problems that may arise once a cross-border surrogacy results in the birth of a child. 89
In light of these challenges, the assertion by the Strasbourg Court's that States are afforded a wide margin of appreciation in regulating surrogacy is not misleading. However, it loses much of its significance in the face of the legal ramifications associated with surrogacy tourism. The availability of surrogacy practices abroad, which are forbidden domestically, poses substantial challenges to the prohibitionist domestic system. The recent D.B. case illustrates this dilemma. The Court may adopt a stringent approach towards intended parents who willingly circumvent the law. The Court concluded that, by not recognising the affiliation, national authorities have not violated Article 8 ECHR, and thus protecting family life. Nevertheless, the Court found a violation of the child's right to a private life, emphasising that the child's best interests should prevail over the inclination to ‘sanction’ the intended parents for their behaviour. 90
A similar phenomenon could be observed in other cases concerning medically assisted procreation or even restrictions on ritual slaughter. The Strasbourg Court upheld the strict domestic laws in these fields, observing, in one case, that the domestic (Austrian) rules did not forbid travelling abroad to undergo medical treatment prohibited in Austria. 91 Equally, it was noted, in a case concerning strict French rules regarding ritual animal slaughter, that the Jewish believers complaining about the domestic rules could still import meat from animals slaughtered following their tradition from Belgium (where the rules at the time were less strict). 92 In stating this, the Court, albeit not explicitly, highlighted the ‘relativity’ of purely domestic rules. As per surrogacy, the situation is not fundamentally different. Despite these considerations, a perplexing concept is the role played by these ‘foreign options’ in the court's analysis. Would the Court still uphold rigid national rules if there were no foreign alternatives? If so, it could also not have mentioned these alternatives since their existence was not relevant to the outcome of the cases. If, to the contrary, the availability of options abroad did play an essential role, one may wonder why an assessment of national law is even made, particularly in a field where a wide margin of appreciation is left to domestic authorities, against the backdrop of the law of other (neighbouring) States. Additionally, one may also question the impact of changes in those foreign legal systems on the Court's assessment of the domestic law. Would a restriction abroad lead to the conclusion that the domestic authorities are under a higher burden to defend the national legislation, or would the Court then refer to the growing, but restrictive, European consensus?
CONCLUSION
Cross-border surrogacy remains a challenging practice for legal systems which do not allow, within their national borders, the practice of surrogacy. The question is, however, to what extent they have to accept foreign surrogacy practices involving their citizens, and whether they must recognise its effects and consequences on their soil. Concepts such as ‘ordre public’ 93 or ‘international ordre public’ (public policy), common in international private law, often serve as gateways to avoid the application of legal norms, judgments, or administrative decisions, which are legal under foreign law, but considered contrary to essential values of the domestic forum, and cannot, for that reason, take (full) effect in the domestic legal order. 94 However, solely relying on these notions to express disapproval of the practice of surrogacy, which could be considered antithetical to the most fundamental values of a particular society, will not work. Surrogacy has a legal and factual effect: it leads to the birth of one or more children who have fundamental rights, and their rights should not be affected by denying their relationship to their intended parents, simply due to the actions their parents took to conceive the child.
The Strasbourg Court's affirmation that States can still forbid surrogacy on their soil should be complemented by the nuance that, in any event, if children are born out of transborder surrogacy, States, nevertheless, do have obligations to secure the fundamental right to private life of those children. 95 In practice, this means that the ECHR is the legal text that contributes to the normalisation of surrogacy, rather than to its disappearance. The Court's case law could be used, therefore, as a soft levy to push States towards the creation of an international legal framework on the topic, which seems to be the position of the EU's Commission as well. 96 In its Proposal for a regulation (recognition) of parenthood, it clearly indicates that the rights of children in cross-border situations should be strengthened within the EU. This Proposal implies the recognition of the ECtHR's decisions and authentic instruments relating to issues of parenthood in cross-border situations. Although recognition can be refused on the grounds of policy issues within the Member State, the refusal can, in that case, only be accepted if due care is given to the interests of the child. 97 Should the Proposal become law, one can assume that the interplay between the EU legislation and the ECtHR's case law on the interest of the child in cross-border surrogacy cases will seriously limit exceptions to the public policy.
Footnotes
Acknowledgement
The author thanks Eva Sevrin for her valuable comments as well as the anonymous reviewers. The usual disclaimer applies.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
