On 10 April, the Grand Chamber of the European Court of Human Right adopted its first Advisory Opinion under the new Protocol No. 16 to the ECHR, which entered into force on 1 August last year. This Protocol, which has so far been ratified by twelve States, allows the “highest domestic courts” to request the European Court to give an Advisory Opinion on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. The objective of the Protocol is to “further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity.”
In this blog post, I will briefly discuss the content of this 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”, before turning to the question as to what lessons can more broadly be drawn from it regarding the kinds of policy choices the Court has to make when applying the Protocol 16 mechanism.
On 26 June 2014, the Court delivered judgments in the cases of Mennesson v. France and Labassee v. France (see blog post here). These cases concerned the refusal by the French authorities to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born through a surrogacy agreement and their intended parents. While the Court did not find a violation of the right to respect for family life of children and intended parents, it did find a violation of the right to respect for private life of the children because their right to identity was affected as a result of the non-recognition, in particular as one of the intended parents was also the biological parent (i.e. the father).
In follow-up to the Strasbourg judgment, on 16 February 2018 the French Civil Judgments Review Court granted the request by Mr and Mrs Mennesson, acting as the legal representatives of their two minor children, to re-examine their appeal on points of law challenging the non-recognition judgment. In the context of this re-examination, the French Court of Cassation submitted a request for an Advisory Opinion from the Court. In the aftermath of the Mennesson and Labassee judgments, the Court of Cassation had adapted its case law, allowing for the registration of the birth certificate of a child born through surrogacy abroad only when the intended father, designated in the certificate, was also the biological father. The questions submitted to the European Court however revolved around the establishment of a legal parent-child relationship with the intended mother, an issue that was left open in the 2014 ECtHR judgments:
1. 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’?
2. 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?
The Court’s Opinion
When responding to the first question, the Court emphasizes that “two factors will carry particular weight: the child’s best interests and the scope of the margin of appreciation available to the States Parties.” With respect to the first factor, after reiterating the relevant findings from the 2014 judgments, the Court holds that
“[t]he lack of recognition of a legal relationship between a child born through a surrogacy arrangement carried out abroad and the intended mother […] has a negative impact on several aspects of that child’s right to respect for its private life.”
Non-recognition may in particular be disadvantageous to the child as far as questions relating to access to nationality, residence rights, inheritance rights and the right to parental care are concerned. While the Court acknowledges that certain other factors may not necessarily weigh in favour of recognition – e.g. protection against the risks of abuse which surrogacy arrangements entail – it nonetheless considers
“that the general and absolute impossibility of obtaining recognition of the relationship between a child born through a surrogacy arrangement entered into abroad and the intended mother is incompatible with the child’s best interests, which require at a minimum that each situation be examined in the light of the particular circumstances of the case.”
With respect to the second factor – and despite the absence of a European consensus on the issue – the Court considers the margin of appreciation to be reduced. This was because “a particularly important facet of an individual’s identity” was at stake (i.e. the legal parent-child relationship) as well as “essential aspects of [children’s] private life” (i.e. the environment in which they live and develop and the persons responsible for meeting their needs and ensuring their welfare). Taking into account both factors, the Court holds that Article 8 “requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the ‘legal mother’.”
When responding to the second question, the Court considers that “the choice of means by which to permit recognition of the legal relationship between the child and the intended parents falls within the States’ margin of appreciation.” According to the Court, other means than registration of the foreign birth certificate, including adoption, may also serve the child’s best interests in a suitable manner:
“What is important is that at the latest when, according to the assessment of the circumstances of each case, the relationship between the child and the intended mother has become a practical reality […], an effective mechanism should exist enabling that relationship to be recognised. Adoption may satisfy this requirement provided that the conditions which govern it are appropriate and the procedure enables a decision to be taken rapidly, so that the child is not kept for a lengthy period in a position of legal uncertainty as regards the relationship. It is self‑evident that these conditions must include an assessment by the courts of the child’s best interests in the light of the circumstances of the case.”
Now what lessons can we draw from this first Advisory Opinion under Protocol No. 16? A first observation, quite remarkable to those accustomed to reading Strasbourg case law, is the relative brevity of the opinion. In total, the legal considerations are set out in a mere seven pages. It does seem that the Court considers it more appropriate to say too little than too much in its Advisory Opinion. The brevity is the result of a number of choices made by the Court.
Firstly, there is a lack of explicit engagement with the arguments submitted by the various participants in the proceedings (e.g. the litigants at the domestic level, the French government and a number of governmental and non-governmental third party interveners). While the Court holds that it “will take due account” of their observations, it considers that “its task is not to reply to all the grounds and arguments submitted to it or to set out in detail the basis for its reply” (para. 34).
Secondly, while the Court typically narrowly tailors its legal reasoning to the facts of the case, under the mechanism of Protocol No. 16, proceedings are still pending at the domestic level and the aim of a request for an Advisory Opinion “is not to transfer the dispute concerned to the Court” (Explanatory Report to Protocol No. 16, para. 11). For this reason, the Court does not engage with the background facts in the same way as it would do if it were a contentious case. In the Court’s words, it has “no jurisdiction either to assess the facts of a case […] or to rule on the outcome of the proceedings” (para. 25).
Thirdly, the Court makes the choice to confine its Advisory Opinions “to points that are directly connected to the proceedings pending at domestic level” (para. 26). For instance, the Court considers that “the opinion will not address situations involving traditional surrogacy arrangements, that is to say, where the child was conceived using the eggs of the surrogate mother” (para. 29), nonetheless holding that its findings apply “with even greater force in such a case” (para. 47). In addition, the Court emphasizes that “the question to be addressed in the present cases explicitly includes the factual element of a father with a biological link to the child in question” and that it “will limit its answer accordingly” (para. 36).
While Protocol 16 states that “[t]he requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it” (Article 1 para. 2), there is nothing in the text of the Protocol that requires the Court to similarly restrict its response to such context. This choice of the Court is to be regretted, as it is at odds with the objective of Protocol No. 16 to provide guidance on questions of principle relating to the interpretation or application of ECHR rights. Clearly the relevance of such questions transcends the specific case pending at the domestic level and, ideally, the Court’s response should therefore be written with a view to anticipating foreseeable difficulties that may arise in similar future cases.
Another important observation is that the Advisory Opinion is clearly a child of its time. The present so-called “Age of Subsidiarity” is typically considered to be characterized by a stronger reliance on the margin of appreciation doctrine and an increased use of procedural-type review by the Strasbourg Court. As far as the former is concerned, admittedly, the strong focus on determining the proper width of the margin of appreciation in the Advisory Opinion may be explained by the manner in which the question was framed by the Court of Cassation (“is a State Party overstepping its margin of appreciation […]?). Given the fact that judicial dialogue under Protocol No. 16 is supposed to take place “in accordance with the principle of subsidiarity” (Preamble of Protocol No. 16), it can nonetheless be assumed that the margin of appreciation will continue to be the focal point in future Advisory Opinions.
The use of procedural-type review – perhaps procedural-type preview is more appropriate a term in this context – is evidenced by the fact that, in essence, the Advisory Opinion solely prescribes access to an effective procedural mechanism. Such mechanism must allow for the establishment of a legal parent-child relationship if this is mandated by an assessment of the child’s best interests in the light of the circumstances of the case. While the Court does indicate the factors that are relevant for this assessment (paras. 40-41), it does not explain how to determine when countervailing reasons to recognition may prevail. The lack of guidance provided by such reasoning is exacerbated by the Court considering that it is “first and foremost for the national authorities to assess whether and when, in the concrete circumstances of the case, the [parent-child relationship between the child and the intended mother] has become a practical reality” (para. 52) – the presence of such “practical reality” being a prerequisite for the obligation to provide access to an effective procedural mechanism to arise (para. 54). Clearly, such enigmatic reasoning raises more questions than it resolves.
In short, besides the mere finding that a general and absolute impossibility of recognition would violate the Convention (para. 42), the Advisory Opinion provides surprisingly little guidance as to what would not. If the Court continues to go down the road of its first Advisory Opinion, it remains doubtful whether the Protocol No. 16 mechanism will ever mature into a meaningful tool of judicial dialogue. One may wonder whether this Opinion will encourage any highest domestic court in Europe, which in good faith wishes to comply with Convention standards, to embark on a time-consuming process in order to seek this kind of guidance by the Strasbourg Court. Moreover, if you take into account the fact that the Advisory Opinion mechanism requires the intervention of the Grand Chamber – a heavy procedure demanding a lot of the Court’s time and resources – it becomes even more regrettable that the mountain gave birth to a mouse.