This guest post was written by Liesbet Pluym, PhD candidate at Ghent University.
Surrogate motherhood is a complex phenomenon which can lead to many different human right questions: would the absolute prohibition of surrogacy in domestic laws be in accordance with the right to respect for private and family life (art. 8 ECHR)? If it is legally regulated, would e.g. the exclusion of gay couples be in breach with article 8, j° 14 ECHR? Would denying maternal rights to the surrogate mother and not giving her a right to reconsider her decision once the child is born, be incompatible with the European Convention on Human Rights?
The application of international private law rules also leads to uncertainty concerning the compatibility with human right treaties en declarations. The cases of Mennesson v. France and Labassee v. France concerned the French refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples on whose request the treatment was performed. The European Court of Human Rights held that there had been a violation of the European Convention on Human Rights, in particular the children’s right to respect to private life ⎼ but no violation of the right of the children or intented parents to respect of family life.
The Mennessons en Labassees are two married couples of which the wives are infertile. Desperately wanting a child, the spouses went to California and Minnesota respectively. In both cases embryos were formed with a donated egg and sperm cells from the intended father. These embryos were then implanted into the uterus of the surrogate mother, who agreed to hand over the conceived child or children to the intended parents after birth. This practice is in essence surrogate motherhood.
A Californian court prenatally ordered that the Mennesons should be considered the genetic father and legal mother once the children were born. The surrogate mother was not the mother. The Californian birth certificate mentioned the couple as the mother, respectively the father, without any reference to the surrogate mother. A Minnesota court judged in a similar way in the Labassee case.
The birth certificates of the Mennesson children were entered into the registers of births, marriages and deaths. However the Public Prosecutor claimed the annulment of the registration. Eventually, the case was heard by the Court de Cassation, the highest judicial court of France (april 6th, 2011, no 10-19.053). This Supreme Court rejected the arguments of the intended parents and stated thatto give effect to a surrogate motherhood agreement, which is void and contrary to public policy (article 16-7 and 16-9 Code Civil), in particular the principle that civil status cannot be disposed of. The Californian judgment was therefore incompatible with the French international public policy. The Supreme Court pointed out that an annulment did not prevent the children to live with the Mennessons and did not deprive them of a maternal and paternal bond of affiliation according to Californian law. Futhermore, the Court simply stated that this annulment did not infringe upon the right to respect for family and private life (art. 8 ECHR) or upon the interests of the child (art. 3 Convention on the Rights of the Child).
With regard to the Labassees the Minnesota birth certificate was never registered because the Public Prosecutor refused to do so. The Court of Cassation pronounced a judgment in a similar way as in the Mennesson case (april 6th, 2011, no 09-17.130).
The European Court ruled that in both Mennesson and Labassee article 8 ECHR was applicable in its family life aspect because the intended parents acted as the parents of the children since they were born and they lived together in a way that formed family life (Mennesson, para. 45, Labassee para. 37). As there is a direct relationship between the private life of children born after surrogacy and the determination of their legal affiliation and an essential part of the identity of an invidual was at stake, article 8 was also applicable in its private life aspect (Mennesson, para. 46, Labassee para. 38).
The refusal to legally recognise the family bond between the applicants was an interference with the right to respect for family life. Therefore the Court had to examine if France had complied with its negative obligations under article 8 ECHR (Mennesson, para. 48-49, Labassee para. 49). The refusal was motivated by a legitimate aim, namely by the protection of health and of the rights and liberties of others. The refusal stemmed from a wish to discourage French nationals from having recourse outside of France to a reproductive technique that was domestically prohibited with the aim, as the authorities saw it, of protecting the children and the surrogate mother (Mennesson, para. 62, Labassee para. 54).
On the one hand, France had a wide margin of appreciation because in the sphere of decisions relating to surrogacy there is no European consensus and because of the difficult ethical issues involved. On the other hand, the margin was narrow because it concerned parentage, a key aspect of the existence or identity of an individual (Mennesson, para. 77-80, Labassee para. 56-59).
With regard to the right to respect for family life the Court took into account that the applicants admitted that the obstacles, caused by the non-recognition of the birth certificates by the French Supreme Court, were not insurmountable. They failed to demonstrate that they had been prevented from the enjoyment in France of their right to respect for their family life. Therefore, also considering the margin of apprecation, the decision of the Court de Cassation struck a fair balance between the interests of the applicants and those of the French state (Mennesson, para. 92-94, Labassee para. 71-73).
With regard to the right to respect for private life of the children, the Court found a breach of article 8. The latter were confronted with legal uncertainty because of the non-recognition in the French legal order of the de facto bond of affiliation between them and the intended parents. This contradiction between the legal and social reality undermined the children’s identity within French society. Consequently, it was uncertain if the children would receive the French nationality (Mennesson, para. 96-97, Labassee para. 75-76). In addition the non-recognition had negative consequences for the children’s rights of inheritance. In conclusion, the Court posed that the deprivation of a legal recognition of the biological reality, being that the intended father was there genetic father, was against the best interests of the children (Mennesson, para. 99, Labassee para. 78). Considering the consequences for the identity of the children and their right to respect for private life, France exceeded the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy (Mennesson, para. 100, Labassee para. 79).
These surrogacy cases are not the first ones examined by the European Court of Human Rights. Lavisse v. France (1991) concerned the French refusal to register a French association called ‘les Cicognes’, which has the defence of the moral and material interests of surrogate mothers and promotion and moral endorsement of surrogate motherhood as a goal. The European Commission held that this refusal did not violate article 11 nor article 14 of the European Convention. The interference of the right to dreedom of assembly and association was considered to be necessary in a democratic society for the prevention of crime, i.e. incitement to abandon a child.
The commented cases aren’t even the first ones that express the lenient approach of the Court towards procreative tourism. In S.H. v. Austria (2011) the Grand Chamber held that the Austrian prohibition on certain forms of gamete donation was not a breach of article 8 of the Convention because among other things Austrian law did not prohiit that a person goes abroad to seek treatment of infertility that uses artificial procreation techniques not allowed in Austria (para. 114). This argumentation was heavily criticised[i].
Mennesson and Labassee are striking judgments for at least two reasons. Firstly, a remarkable reasoning of the European Court in Mennesson and Labassee is that the daily obstacles for the children and intended parents to have a family life are not insurmountable, hence France did not breach its negative obligation under article 8 ECHR. Shouldn’t the Court have made its analysis from the perspective of the positive obligation to legally acknowledge family relations and act in a way to preserve them? The Court seems to repeat the rather schizofrenic argumentation behind X, Y and Z v. the United Kingdom (1997), namely that there is family life but no positive obligation to protect it[ii]. The question presents itself even more pressing in Paradiso and Campanelli v. Italy (pending), also a case of non-recognition of foreign birth certificates after surrogacy, where the child, who however had no genetic link with the intended parents, was put in an institution. In this case the child was no longer allowed to live with the persons who wanted to care of him and did so for a short period of time.
In another way, these judgments are rather surprising in respect of Wagner and J.M.W.L. v. Luxemburg (2007). This case involved the non-recognition of an adoption of a minor, pronounced in Peru. Luxemburg refused the recognition of the adoption in its domestic law because a single woman was adopting. The European Court held that this refusal was in breach with the right of respect for family life, de facto existing between the adopted child and the adopting woman. Luxembourg ignored the social reality and complicated the integration of the child into the family of the adoption mother, also leading to obstacles in the daily life of the adopting mother and adopted child (para. 132). This is a fortiori the case in Mennesson and Labassee in view of the genetic link between the intended father and the children. Nonetheless the Court ruled that there was no violation of article 8 ECRM in that regard.
Apart from which right was infringed, criticism that was passed on Wagner and J.M.W.L[iii]can also be passed with regard to Mennesson and Labassee: this case law could lead to a contradiction. The international private law rules of a Contracting State could indirectly allow a practice or phenomenon that is forbidden in the domestic law. It looks like the European Court is imposing States to legally aknowledge family bonds that originated abroad. European States that prohibit surrogacy or do not regulate it, are under pressure of foreign liberal approaches. France approached surrogacy in a strictly prohibiting way, as well in legislation as in case law. Even though this approach of protecting the domestic law was in specific cases often a disaster for the children and the intended parents, it was at least clear and consistent.
The importance of these European Court judgments cannot be overrated. In the first place, the court rulings have a symbolic meaning, because surrogate motherhood concerns human procreation, an essential part of human life. It’s a way for those who cannot reproduce without help to comply with their desire to have children. In the second place, many European countries are nowadays facing problems of international private law because of surrogate motherhood tourism. This is the case both for States that prohibit surrogacy (e.g. France, Germany, Austria, Spain) as well as for States that allow it or have no regulation (e.g. the Netherlands, Belgium, the United Kingdom). The approaches in Europe differ remarkably. In Austria, where surrogate motherhood is forbidden by domestic civil and penal law, the Constitutional Court nonetheless acknowledged the genetic intended parents as the legal parents of children born after commercial surrogacy abroad. The Austrian Court stated that judging otherwise would not have been in the best interests of the children. In Belgium, foreign birth certificates are most of the time not legally recognised as such, but are interpreted in case law as a recognition of the child by the intended father, who is at the same time the genetic father. Therefore the children have a legal father ⎼ but no legal mother ⎼ according to Belgian law, and have as such the Belgian nationality. As a result, the Belgian approach would probably not breach article 8 ECHR, at least not in the reasoning of Mennesson and Labassee. The road from the conception of the child to finally the aknowledgment of the bond between the intended father and child is nevertheless rarely smooth. Belgian intended parents have filed a complaint with Strasbourg because the Belgian State refused for a long time to deliver the necessary documents for the child to travel from it’s birth place, Ukraine, to Belgium (D.R. v. Belgium, pending).
It appears that states that in an absolute way refuse to grant legal recognition to a parent-child relationship that has been legally established in a foreign state between a child born as a result of surrogacy treatment and the intended parent(s), will have to change course to act in accordance with the European Convention. The only way to avoid the contradiction as mentioned above, will be legally recognising the de facto bond which will almost always exist between intended parents and the child. This implies that at least the biological parents ⎼ in these cases the Court attaches great importance to the biological connection ⎼ should be legally recognised as the parents of the child.
From a policy point of view, having regard to coherence and consistency as fundamental features of law, this pressure of the European Court is problematic: Contracting States are forced to allow the erosion of their legislation[iv]. It will be difficult to balance the interests of the child, the intended parents and the surrogate mother against those of the State. One should also bear in mind that international surrogacy often involves the exploitation of surrogate mothers (e.g. in India). It does not seem expedient that states implicitly allow these practices by recognising foreign birth certificates.
[i]W. VAN HOOF andG. PENNINGS, “The consequences of S.H. and Others v. Austria for legislation on gamete donation in Europe: an ethical analysis of the European Court of Human Rights jugdments”, Reproductive BioMedicine Online 2012, (665) 668; N. GALLUS, “La procréation médicalement assistée et la jurisprudence de la Cour européenne des droits de l’homme” in N. GALLUS (ed.), Droit des familles, genre et sexualité, Limal, Anthemis, 2012, (203) 222-223, no. 24.
[ii]P. MURAT, “Filiation et vie familiale” in F. SUDRE (ed.), Le droit au respect de la vie familiale au sens de la Convention européenne des droits de l’homme, Brussels, Bruylant, 2002, (161) 177.
[iii]T.M. YETANO, “The Constitutionalisation of Party Autonomy in European Family Law”, Journal of Private International Law 2010, (155) 164-165and 179; F. CHÉNEDÉ, “Efficacité sur le territoire français de la gestation pour autrui réalisée à l’étranger” (annotation of ParisOctober 25th, 2007), AJ Famille 2007, (478) 479.
[iv]Cf. J. TOBIN, “To Prohibit or Permit: What Is the Human Rights Response to the Practice of International Commercial Surrogacy?”, International and Comparative Law Quarterly 2014, (317) 348.