March 14, 2022
By Sarah Ganty
One might expect that with the emphasis placed on the best interests of the child in recent years (even decades), the issue of surrogacy would not be so haphazardly approached by the ECtHR. And yet the patchwork quilt of protection afforded to children (and their parents) born from surrogacy is strikingly insufficient, especially when it comes to citizenship recognition. Many European states are reluctant to recognise the legal effect of surrogacy, because it is felt to imply the commodification of human bodies or contradict the traditional conception of the family. The Court usually leaves a wide margin of appreciation to the states which are against surrogacy and will not enforce a surrogacy arrangement unless it is – overwhelmingly – in the best interests of the child (see Advisory opinion requested by the French Court of Cassation; Labassee; Mennesson). S. – H. v. Poland is no exception, a case where the applicants – two children born from surrogacy in the US – were refused Polish citizenship because their surrogacy and their parents being a same-sex couple contravened basic principles of the Polish legal system. The ECtHR found the case to be inadmissible because the applicants failed to show the negative impact of being refused Polish citizenship on the following elements: 1) the children were not likely to become stateless; 2) the family did not have sufficiently concrete plans to return to Poland and had never lived in Poland; 3) the family would not face any difficulties in Israel (their country of residence) as a result of the refusal of Polish citizenship; and 4) as family members of an EU citizen, the applicants could still enjoy freedom of movement.
This post will argue that the Court’s ruling is founded on a profound misunderstanding of citizenship in many regards. The Strasbourg Court ignores the hierarchy and inequalities in which the citizenship system is rooted, discriminates against people who have multiple citizenships, overlooks the fact that Polish citizenship is about EU citizenship, wrongly links citizenship and residency by adopting a questionable vision of identity, and ignores the offensive anti-rainbow family reasoning behind the refusal of Polish citizenship. In short, the Court does nothing but participate in excluding from the human rights system the victims of citizenship.
Mr S. and Mr H., a same-sex couple, are the applicants’ parents and reside with them in Israel. Mr S. and Mr H. have Israeli citizenship and Mr S. also has Polish citizenship. In 2010, both men started a gestational surrogacy agreement with a married US woman (§5). The children were conceived via assisted reproduction technology using Mr S.’s gametes and an egg from a donor. The surrogate mother got pregnant with twins (§6). In a judgment of 7 September 2010, the Superior Court of California declared Mr S. and Mr H. the natural, joint and equal parents of the twin babies who were born a few days later. It also declared Mr S. the biological father of the twins. The judgment further stated that Mr S. should be recorded as the father/parent and Mr H. as the mother/parent (§7).
In July 2012, Mr S. applied on behalf of both applicants to the Polish authorities for confirmation of the applicants’ Polish citizenship. The applicants submitted a copy of the U.S. court decision (§8). The Governor of Mazowiecki rejected the application and, on appeal, the Minister of the Interior, the Warsaw Regional Administrative Court and the Supreme Administrative Court upheld this decision (§§12, 17, 21, 24). The latter court noted that a child who had one Polish parent and one foreign parent acquired Polish citizenship at birth, but that the term ‘parent’ has a specific legal meaning. Thus, Mr S.’s genetic link to the children and Polish nationality were irrelevant to the case, as having two men as parents ran against the basic principles of the Polish legal system and surrogacy agreements ran counter to the principles of community life (§24).
The applicants’ claim to the ECtHR focused on the domestic authorities violating Article 8 considered on its own, and in conjunction with Article 14 of the Convention, by not recognising their legal parent-child relationship with their biological father, and by refusing to confirm their Polish citizenship on considerations relating to their parents’ sexual orientation.
In the meantime, the Polish Supreme Administrative Court adopted a more flexible position in other similar surrogacy cases (the main difference being that the surrogate mother in subsequent cases was anonymous). In 2018 and 2020, the Polish Administrative Supreme Court ruled that the fact that a child had been born via a surrogate mother was of no relevance to the acquisition of Polish citizenship for the child on the basis of its father’s citizenship (§43, 47) and therefore reversed its previous case law – as applied in the case under comment – where it had found that the applicants’ citizenship could not be confirmed because surrogacy agreements ran counter to the principles of community life. In another case, the Polish Supreme Administrative Court held that the refusal of transcription – which contravened the fundamental rules of the legal order of Poland – should not lead to a situation in which a Polish citizen was not able to obtain identity documents and a PESEL number (§47).
The Court found that the application on the basis of Article 8 was inadmissible because of the lack of jurisdiction ratione materiae. It adopted a consequences-based approach relying on Denisovand Usmanov to examine whether the domestic authorities had sufficient, serious negative consequences for the applicants, who failed to show that the threshold was attained in their case. The Court briefly dismissed the elements brought by the applicants and insisted on the fact that the main differences between this surrogacy case and the previous ones (Labassee; see also Mennesson) is that the family did not live in Poland (§71).
As to the facts that the applicants’ family were descended from Polish Jews – including victims of the Holocaust – that this heritage was extremely important to them, and that they were considering moving to Poland, the Court held that the applicants did not bring any specific information or details about the family’s plans to relocate to Poland and it did not appear that such a move was imminent (§68). Moreover, the applicants had never lived in Poland (§69). They already had dual US/Israeli citizenships and did not become stateless as the result of the refusal of Polish citizenship (§68). Furthermore, they did not show any negative consequences or practical difficulties which they might encounter in their country of residence (Israel) deriving from the Polish courts’ refusal to confirm their Polish citizenship (§68). As a result, the applicants were not left in a legal vacuum as to either their citizenship or the recognition of the legal parent-child relationship with their biological father, since this link is recognised in Israel (§69). Finally, and in any case, the applicants, as family members of an EU citizen – Mr. S is Polish –, are entitled to free movement within the EU and enjoy the right to move and reside in the territory of another Member State.
I argue that the Court misunderstood the impact of the refusal of the Polish citizenship to children born from surrogacy in a same-sex family, amounting to a denial of justice.
First, the assumption of the Court that citizenship matters only if you live in the country of your citizenship without taking into account the fact that citizenship has an important external dimension is flawed. As the Quality of Nationality Index shows, the external value (i.e. the settlement and travel freedoms) of Polish citizenship is 90.5%, while US citizenship is 60% and Israeli citizenship is 44.2%. Even if we compare the ‘general worth’ of citizenship, a metric which also comprises internal elements (considering the economic strength, human development, peace and stability of the country granting the status), Polish citizenship is ranked 20th at 77%, while Israeli citizenship is ranked 48th at 46.7%. In other words: not all citizenships are equal. If the Court wants to make human rights effective, it cannot continue pretending that there is an equality among citizenships.
Second, the Court’s assumption that statelessness is a worse condition – thus amounting to an impact of legal significance if a citizenship is refused – than having any citizenship – implying that the refusal of a second citizenship is a less significant impact – is based on a wrong assumption. Indeed, simply having a citizenship does not make you better off than being stateless in Germany, for instance, if the citizenship you have is a ‘bad’ one, as has been compellingly argued by Swider. By arguing that the applicants are not affected because they are not left stateless, the Court, like its Luxembourg counterpart, does nothing but openly discriminate against people who have dual or even triple nationality, and, as argued by Kochenov, deprives them of improving their legal, material and social situation and thus their quality of life and opportunities. In other words, the Court denies the positive impact of a ‘good’ citizenship and thus the negative impact of not receiving it, as in the case under comment. In fact, it has been compellingly argued by Spiro that dual citizenship should be protected as a human right since it comprises ‘both a form of association and a vehicle for individual identity’.
Third, by being refused the Polish citizenship, the applicants were also denied EU citizenship. In fact, Polish citizenship is primarily about EU citizenship as the accession of Poland to the EU demonstrates: citizenship applications were multiplied by 5 between 2000 and 2004, mainly from descendants of Polish emigrants outside of the EU (e.g. Argentina), who were entitled to Polish citizenship and took advantage of this right, as shown by Górny and Pudzianowska. The Strasbourg Court totally missed that point. Moreover, if, as underlined by the Court, it is true that as long as they are minors, the applicants will be able to benefit from the freedom of movement in the EU (and on top of that, to Switzerland, Iceland, Liechtenstein and Norway) attached to the status of their Polish father, this will cease to be the case as soon as they turn 21. It means that they will not be able to benefit from freedom of movement and all the advantages linked to it – especially in terms of studies, grants etc. – after that age. This is not a hypothetical interest, but a real one and the Court failed to address it.
Fourth, the fact that the family did not have concrete enough plans to move to Poland should not have been decisive for the assessment of the impact of the challenged decision. Following the same steps as the CJEU, the Court does not accept the ‘hypothetical’ interests of a person that is denied citizenship. To put it differently, the Court embraces an approach according to which you have an interest in receiving a citizenship only if you actually live in a country, which reinforces the vulnerability of multi-national families. Of course, the applicants who are today nine years old are not in the position to choose to live in Poland – or any EU country. Moreover, depriving them of the opportunities to become Polish and EU citizens is concrete and implies depriving them of a family heritage, as Mennesson would have been deprived of their inheritance rights in France (supra). This question is closely linked to the one of identity, dear to the Court in surrogacy cases. The Court did not engage with the element of identity brought by the applicants, although it had ruled in Genovese that the denial of Maltese citizenship to a British citizen born outside of wedlock (and who did not live in Malta) had such an impact on his social identity that it brought the case under the ambit of Article 8 (§33). It is therefore difficult to understand why social identity was enough to justify the impact on private life in one case but not in the other. Even in Labasse, the Court insisted on the fact that nationality was a component of individual identity and that the denial of French nationality led to a situation that was likely to have negative repercussions on the definition of the children’s identity (§76). It is true that the Labasse family lived in France while S. and H. did not live in Poland. However, it would be absurd and assimilationist to limit the question of identity to the place where a person habitually lives and even more absurd to consider that one person can only have one identity – the one of her place of residence. If the concept of identity ever is to make sense, one should at least take into account the reality of its complexity and multiplicity, at whichthe Court, in casu, clearly failed.
Fifth, in its assessment of the application of Article 8, the Court did not mention the reasons why Polish citizenship was not confirmed, despite the ‘reason based-approach’ being part of the Denisov test on which the Court relied for the ‘consequence based-approach’. The reason the citizenship was refused is significant, however. Citizenship was refused because surrogacy and rainbow families run counter to the basic principles of the Polish legal system. In this context, the fact that the circumstances of the applicants’ birth and family model was taken into account as the reason and qualifying criteria for refusing them the Polish citizenship they would have received otherwise should have been enough to trigger the application of Article 8. Indeed, whether considered under Article 8 alone, or in combination with Article 14, the Polish authorities have treated the applicants differently on the basis of their family composition, circumstance of birth and the sexual orientation of their parents, as in Genovese where the applicant was treated differently because he was born outside the wedlock. In the same vein, the Court did not deal with the question of the children’s best interests, although this has been at the heart of its judgments in the most important surrogacy cases. In this context, under the best interests of the child principle, the situation in which birth circumstances and family composition amount to the refusal of Polish citizenship should have been considered a minima as a matter of private life under Article 8.
In any case and to end on a more positive note, if the applicants manage to have their birth certificates recognised in another Member State, it would be difficult for the Polish administration to refuse to take into account their birth certificates and thus to confirm their Polish citizenship. Indeed, according to the recent CJEU judgment in VMA, the principle of mutual recognition is applicable to birth certificates issued by other Member States, whether the parents of the children are persons of the same sex or not. It therefore leaves applicants with alternative solutions, although many issues remain open under the ECHR.
 In fact, whether there was a violation of Articles 8 and 14 or not does not matter for this commentary. What matters is that the Court refused to consider the refusal of Polish citizenship to two babies which would have otherwise acquired it, had they not been born from surrogacy in the US, as falling within the ambit of ‘private life’. In the same vein, I will not comment on the wide margin of appreciation left to Member States on the matter of citizenship, and whether the applicants could have ‘simply’ asked to rebut the paternity presumption of the surrogate parents, or on the fact that the Polish administrative Supreme Court adopted a more nuanced position after it ruled on the applicants’ appeal. Indeed, all these issues concern the merits of the case upon which the Court refused to touch.