By Dr Marianna Iliadou, Teaching Fellow in Medical Law and Ethics at Durham University, UK.
On 18 May 2021, the Third Section of the European Court of Human Rights (ECtHR or the Court) delivered a judgment on the contested issue of non-recognition of the parent-child relationship for a child born through cross-border surrogacy. Surrogacy is the practice where a woman (surrogate) carries and gives birth to a child for someone else.
Valdís Fjölnisdóttir and Others v Iceland gave the Court the opportunity to rule on the refusal of parentage recognition where no intended parent is genetically related to the child, but the child is under their foster care. The Court found no violation of Article 8 ECHR (private and family life), because based on the foster care arrangements there were no actual, practical hindrances in the enjoyment of family life, while given the same (in principle) nature of the complaint under private life it did not see any reason to depart from the above conclusion. Lastly, the Court did not engage with the claim under Article 14 (non-discrimination) and rejected it as manifestly ill-founded.
In this post, I will start by presenting the facts of the case, moving on to the judgment of the Court, which will then be followed by a brief commentary. I will argue that the main problem with this judgment is that the Court did not engage with the consequences of non-recognition for the child born through cross-border surrogacy, but it is also significant for the concept of family life and future cases on discrimination.
The claim was brought by three applicants, the two intended parents (parents opting for surrogacy), Ms Fjölnisdóttir and Ms Agnarsdóttir, and their child, X. It concerns the refusal to recognise a parental link between them. X was born through gestational surrogacy in California to the first two applicants in 2013, but neither of them is genetically related to him, as gamete donation was used instead. The first two applicants, a married couple at the time, complied with all requirements for a lawful surrogacy arrangement in California and returned to Iceland with a birth certificate, which named them as parents of X.
Upon their return, however, their application to have X’s Californian birth certificate registered was denied given that surrogacy is prohibited in Iceland and X was considered a foreign citizen, not to be awarded the Icelandic citizenship. A legal guardian was appointed, but X was placed in the care of the first two applicants until a permanent foster care arrangement was made. The couple appealed the registration refusal to the Ministry of the Interior, while they also applied to adopt X, but adoption could not be addressed at the time in light of the pending registration application. The appeal was rejected on the basis that under Icelandic law, the mother of the child was the Californian surrogate, and no indication was made that the genetic father was from Iceland.
As they sought judicial review of the Ministry’s decision, a change in the Icelandic law meant X was awarded the Icelandic citizenship, but the first two applicants were still not registered as X’s parents. While the judicial review proceedings were pending, the first two applicants divorced in 2015 and withdrew their adoption application.
In 2016, the District Court rejected their application, holding that recognising the Californian birth certificate was manifestly incompatible with the fundamental legal principles of Icelandic family law, and it would create a legal loophole with regard to the ban on surrogacy. It was further held that while family life existed between the three applicants, interference with family life by refusing registration was justified to uphold the ban on surrogacy and protect the interest of others, i.e. for women not to be pressured into surrogacy and for children to know their heritage. Foster care arrangements preserved the family bond, while, had the applicants not divorced, their adoption application would have been probably approved.
The first two applicants then appealed the District Court’s decision before the Supreme Court. The latter ruled against them, following the same argumentation as the District Court, but went a step further in finding no family ties between the applicants before the fostering arrangements in Iceland. They based this on Paradiso and Campanelli v Italy (discussed below), claiming that ties had not been established in a lawful manner under domestic law; hence, the applicants’ bond was protected only after the formal foster care arrangements.
Given the above, the first two applicants complained before the ECtHR that the refusal to register them as parents of X and to recognise the foreign birth certificate violated their right to respect for private and family life (Article 8), depriving them of a stable and legal parent-child relationship. Particular attention should be drawn to the parents’ claim that X’s stable social relationship was not sufficiently protected by the foster care arrangement, including the absence of inheritance rights (§47). In addition, the applicants complained they had been discriminated against (Article 14 in conjunction with Article 8) because instances existed where other intended parents from Iceland had been registered as parents of their children born through cross-border surrogacy (§36).
Before moving on, it is important to understand the context of the judgment by briefly mentioning key cases brought before the Court in the past. Previously the ECtHR ruled that based on the best interests of the children born through cross-border surrogacy, legal parentage should be recognised when the intended father was also the genetic father (Mennesson v France, Labassee v France). In addition, the Court held that for the intended parent not genetically linked to the child, the parent-child relationship needs to be established not necessarily through recognition of the foreign birth certificate but through other adequate means that produce similar effects to registration of the foreign birth details, such as adoption (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). Furthermore, in Paradiso and Campanelli v Italy, the Court found no violation of the Convention with regard to the removal of a child born through cross-border surrogacy to Italian parents that were not genetically related to the child, as surrogacy is unlawful in Italy.
In the present case, the ECtHR started by addressing the contested issue of the existence of family life. The government argued that family life was not involved in the present case, claiming they should be granted a wide margin of appreciation, particularly in the absence of a genetic link between the applicants and due to the circumvention of domestic law. The ECtHR, however, differentiated this case to Paradiso where it had found that family life was not engaged, given that here the parent-child relationship was not severed by domestic authorities; instead, foster care arrangements were made early on to enable the enjoyment of family life. The Court recalled that in Paradiso family life did not exist due to the absence of genetic link, the short duration of the relationship between the applicants and the child, and the legal uncertainty with regard to the ties. However, the Court reminded that de facto family ties can be established even in the absence of a genetic link if there are genuine personal ties, which can be demonstrated by considering the quality of these ties, the role played by the applicants towards X and the duration of cohabitation. In the present case, the ECtHR did find that the conditions for family life were met based on the long uninterrupted relationship with X starting from his birth, which was further reinforced by the foster care arrangements.
However, the Court found no violation of Article 8. Accepting that the refusal to recognise the first two applicants as X’s parents had a sufficient basis in law and served the legitimate aim of protecting the rights and freedoms of others, the Court held that the interference was also necessary in a democratic society. A wide margin of appreciation was granted due to the absence of European consensus in the matter at hand, which also raises sensitive moral and ethical issues. Iceland did not act beyond this wide margin of appreciation given that there was no indication of actual, practical obstacles in the enjoyment of family life. Instead, national authorities took steps to ensure family life was not interrupted, and they also awarded X the Icelandic nationality. While the Court acknowledged that non-recognition has affected the applicants’ family life, a holistic examination of the matter meant that foster care arrangements did strike a fair balance between the applicants’ family life and Iceland’s interest in banning surrogacy. Had they not divorced, adoption would have probably been an option for the first two applicants. It still was an option for each applicant and their current partners. Nevertheless, the ECtHR held adoption was not to be examined here, as the issue before the Court was the refusal to register the first two applicants as X’s parents.
The Court did not address private life separately, as it held that the applicants’ complaint in relation to private life was in principle the same as the complaint in relation to family life (§76). It further dismissed the complaint under Article 14 as manifestly ill-founded, given that the material submitted did not appear to raise any such violation (§79).
Cross-border surrogacy places the Court in the unenviable position of balancing the State’s ban on surrogacy against the adverse consequences of not recognising the parent-child relationship for the parents but most importantly for the child. Confined by the length of this blog post, there are at least three important aspects worth inspecting in the present case: existence of family life, consideration of X’s private life and potential discrimination.
First, the Court clarifies its position about family life post Paradiso. I have argued elsewhere that non-existence of family life in Paradiso was the result of the combination of (all) three factors: absence of genetic link, duration of cohabitation and legal uncertainty created by the applicants themselves.The Court in the present case acknowledges de facto family ties (hence, existence of family life) given the duration of cohabitation and the fact that domestic authorities did not hinder the enjoyment of family life but instead endorsed it through foster care arrangements (§62). This reinforces the argument that it is the combination of all three aspects, not one or even two of these factors alone, which leads to the non-existence of family life in the eyes of the Court. For example, in the present case, a genetic link is absent and the legal uncertainty was created by the applicants themselves (just like in Paradiso), but there has been an uninterrupted cohabitation for 4 years, at the time of the Supreme Court’s decision, and the domestic authorities did nothing to hinder the actual enjoyment of family life. It is not clear, however, whether the ECtHR’s position caters for the position adopted by the Supreme Court of Iceland that denied the existence of family life pre-foster care arrangements. This is because the ECtHR considered family life from birth until the decision of the Supreme Court, therefore some years after the first foster care arrangements. Would the ECtHR deny family ties if the Icelandic authorities removed X from the first applicants within the first 8 months of cohabitation? If so, it does not address the problematic nature of Paradiso (see above-mentioned case note for criticism of Paradiso).
Second, and most importantly, the Court failed to consider the impact of foster care arrangements on X’s private life. Judge Lemmens seems to acknowledge this in his separate Concurring Opinion, but he argues that the applicants relied explicitly on family life and did not mention private life, leaving no reason to consider private life separately in the present case. A close reading of the parents’ arguments under Article 8, however, suggests that the parents did in fact draw the attention of the Court to the adverse impact of the non-recognition of the parent-child relationship on X, including on inheritance rights (§47). The Court did not address this point, focusing on the de facto enjoyment of family life. This is additionally problematic in light of the Advisory Opinion of the ECtHR mentioned above, which held that the parent-child relationship for the parent that lacks genetic link should be recognised in a suitable manner aiming to produce similar effects to the registration of the foreign birth details, with adoption being a potential solution. There are differences between the case at hand and the scenario in the Advisory opinion: the latter concerned the suitable solution of recognising the second legal parent that lacks genetic link, given the first parent is already recognised as the genetic father. This can be distinguished from the present case where no applicant had a genetic link with X and none of them was registered as X’s parent. It could be argued, therefore, that not recognising the parent-child relationship here is not contrary to the Advisory Opinion and there is no need for the solution provided by domestic authorities (here foster care) to have similar effects to the registration of the foreign birth details.
However, a question still arises as to whether foster care arrangements are an adequate protection of X’s rights. The Advisory Opinion emphasised that any measure should be taken in accordance with the child’s best interests, and it seems unlikely that the Court wished to limit this finding only to instances of genetic link. X is effectively parentless, while his best interests were not addressed or reflected upon by the ECtHR. The failure to engage with the paramountcy of the child’s best interests is further demonstrated by the disregard of the UN Convention on the Rights of the Child, even though a third-party intervener, the AIRE Centre (Advice on Individual Rights in Europe), explicitly invited the Court to consider this through its written submission. It seems that through its silence the Court endorses the position of the District Court of Iceland according to which ‘the child’s best interest, although of paramount importance, could not override the fundamental legal principles of parentage’ (§21).
Finally, the Court did not consider the potential discrimination the first two applicants suffered given that there were instances where other intended parents from Iceland were registered as parents of children born through cross-border surrogacy. It is mentioned that in a cross-border surrogacy case that also took place in the USA, the genetic father was registered as the legal father in Iceland, with the subsequent registration of the second parent, who had no genetic link with the children (§36). While this is not articulated clearly in the judgment, a question can arise as to the potential discrimination between those that can provide their genetic material and those that cannot. The Court could have discussed why treating the current applicants differently from the above case (where one applicant was genetically related to the child) might have been justified or not, but it did not proceed to this consideration. As a separate issue, although the present case did not raise this point, it would be interesting to see the Court’s approach in case one of the applicants was genetically related to the child, in the absence of a genetic father. Previously, in D v France, both intended parents were genetically related to their child born through cross-border surrogacy, but only the father was allowed to be registered as a legal parent, while the mother had to adopt her child.The ECtHR held that having a distinct way of recognising the legal relationship between children born through surrogacy and their genetic mother, as compared to the genetic father, had an objective and reasonable justification. However, a different scenario would be the case of two intended mothers with one of them genetically related to the child, none of which can be registered as a legal parent. The discrimination would then refer to the impossibility of the genetic mother to establish legal parentage, as what defines legal motherhood is giving birth and not providing the genetic material, which differs from genetic fathers who are awarded legal parentage based on their genetic link with the child. This would question the mater semper certa est principle, this time combined with the absence of a genetic father, although in the present case the Court found that interpreting domestic law to mean that only the woman who gives birth to the child is to be awarded legal motherhood was ‘neither arbitrary nor manifestly unreasonable’ (§64). Notwithstanding the existence of a genetic link, in this hypothetical scenario, the genetic mother and her child could be in a more precarious position as compared to a genetic father and his child.
While it is understandable that the Court does not wish to substitute national authorities in matters of sensitive moral and ethical nature, questions remain, particularly in terms of the child whose best interests are supposed to be at the heart of any consideration. It is regrettable that the ECtHR did not consider the impact of foster care arrangements on the child, and it might well be the case that the Court will be called upon in the future to develop its case law on the discrimination of couples who do not have a genetic link with the child born through cross-border surrogacy.