December 23, 2022
by Nikos Koumoutzis
Since 2014, the European Court of Human Rights (ECtHR) has been hearing cross-border surrogacy cases concerning the right to recognition of parentage of the child with its intended parents within the framework of the European Convention on Human Rights (ECHR). A fairly large number of such cases have been reported already, and it is exponentially increasing in this fast-moving area of law (see ECtHR, here, and, for a systematic overview up-to-date until the middle of November 2021, Koumoutzis, here, nos. 30-48). Here also comes to be added a new piece, the judgment on D.B. and Others v. Switzerland, delivered on 22 November 2022 [hereinafter D.B.] (which is, remarkably, not the last in the list: see the judgment on K.K. and Others v. Denmark, delivered on 6 December 2022).
D.B. stands out as the first to attribute to the child –and what is more: ex tunc– a right to recognition of parentage with both its male same-sex intended parents, the genetic and the non-genetic father. To be sure, D.B. signals a victory for rainbow families and simultaneously a defeat for national states who, from now on, face limits in their autonomy to enforce their surrogacy bans and to regulate descent based on at least some sort of resemblance to natural procreation.
There are three applicants in D.B.: two male registered partners and the child that they had through a gestational surrogacy in California. All three are Swiss nationals (the child is also a US national). The embryo implanted in the surrogate’s uterus was created from the sperm of one of the men and the egg of an anonymous donor. Once the pregnancy was confirmed, a judgment of the California court declared the two men as legal parents of the unborn child and, as soon as the child was born in 2011, a corresponding birth certificate was issued.
Upon return in Switzerland, the applicants asked for the recognition of the judgment and the transcription of the birth certificate in the civil register. This generated a dispute, leading to a series of conflicting decisions of the Swiss authorities (paras. 9 ff.). The dispute was settled at last instance by the Tribunal fédéral, which pronounced in favour only of the recognition of the relationship of the child with the biological father (para. 14).
As such, since national remedies had been exhausted, a complaint was lodged with the ECtHR in 2015, regarding the refusal of recognition of the relationship of the child with the non-biological father. The applicants submitted that, as a result, the right of each one of them to respect of private and family life (art. 8 ECHR) had been infringed, and, on top of that, the third of them, the child, had been victim of discrimination on the ground of its modality of conception (art. 14 ECHR in conjunction with art. 8 ECHR).
In the meantime, the Swiss Civil Code allowed step-parent adoption for registered partners on 1 January 2018, whereupon, actually that very day, the adoption was requested; the adoption was then granted on 21 December 2018 (paras. 16, 17). The applicants maintained their complaint, nonetheless, alleging that they had not enjoyed a ‘prompt’ and ‘effective’ recognition, as prescribed by the ECHR (see paras. 32 ff. and further below).
The ECtHR found that, on the one hand, there had been a violation of the right to respect of private life of the child (paras. 87 ff.), but, on the other hand, there had been no violation committed at the expense of the male parents, and more specifically vis-à-vis their right to respect of family life –their right to respect of private life was not given any attention (paras. 91 ff.). As for the remainder of the complaint, the ECtHR refrained from considering it (paras. 90, 101 and 97 (on the last point see the Conclusion of the post)).
The judgment is accompanied with three annexed separate opinions, one concurring (of Judge Krenc, elaborating on his vote) and two partially dissenting, which are also in disagreement with each other over the real impact caused to the child by the refusal of recognition pre-2018: according to Judge Elósegui, this does not amount at all to a violation of art. 8 ECHR, whereas according to Judge Pavli, a finding of violation of art. 8 ECHR does not suffice if it is not combined with a finding of discrimination, the only one suited to address –on an expressive level– the ‘inherent prejudice’ experienced by the child owing to the unfairness of the law.
This post will focus on the violation of the right to respect of private life of the child and how the ECtHR makes its way to such an inference. To begin with, the ECtHR ascertains an ‘interference’ with the art. 8 ECHR right ‘under its facet relative to “private life”’ (paras. 70, 45), reiterating Mennesson v. France (2014) (and Labassee v. France (2014)), that ‘respect of private life requires every child [to] be able to establish the details of their identity as human beings, which includes their filiation’ (para. 43).
To determine whether the interference is ‘necessary in a democratic society’, the ECtHR pauses to expound the ‘relevant general principles’ of its jurisprudence (paras. 76 ff.). Practically, what may serve as a benchmark here, is not so much the Mennesson and Labassee judgments themselves, dealing with the right of the child to have its filiation recognised with the biological father (para. 78), as the more recent authority of the Advisory Opinion (2019), which endorsed the right of the child to have its filiation recognised with the intended mother (non-genetic or, ‘a fortiori’, genetic) through a ‘prompt and effective’ mechanism, not excluding adoption (paras. 79-81). The ECtHR has already followed up its Advisory Opinion with C. and E v. France (2019) and D. v. France (2020) (only the second is referenced at para. 82). It now estimates it can repeat this towards the facts of D.B., given that the Advisory Opinion is extendable enough in terms of its personal as well as its temporal scope, to safely cover the case at hand. These are both controversial holdings, calling for careful commentary.
1. The extension of the Advisory Opinion on same-sex parentage
Having pointed out that, contrary to the cases decided against France, the commissioning parents in the present case are not opposite-sex persons joined in marriage, but same-sex persons joined in registered partnership (this is described as ‘the chief distinctive criterion’ of the present case), the ECtHR goes on to note that the principles previously elaborated, especially those of the Advisory Opinion for the recognition of the intended mother, are likewise applicable in D.B. for the recognition of the intended father (para. 84). Whatever the context, a possibility of recognition of the filial link with the intended parent is required (para. 85).
The explanation given by the ECtHR is that ‘the interests of the child cannot depend on the sexual orientation of the parents alone’ (para. 85). This framing of the issue is also encountered in the legal literature before D.B. Indeed, for some authors, the male intended parent and the surrogate-born child in the same-sex couple are ‘in a directly comparable position’ to the female intended parent and the surrogate-born child in the opposite-sex couple, as their only difference revolves around the gender to which the parents feel sexually attracted. In substance, though, the parents’ homo- or heterosexuality is quite irrelevant. If we sideline such traits –as we definitely should–, then all the rest is similarities between the two parental couples; in the sense, notably, that they are both composed of a biological father who has already received recognition of his paternity in domestic law, and an intended parent having concluded with the former a formalised relationship. These thoughts advocate for the aforementioned extension, so that both schemes may benefit from recognition (see Bracken, here, pp. 4, 13 ff.; also, Brodeală and Peter-Spiess, here, pp. 408 ff., 418; cf. Fulchiron, here, pp. 569-570).
However, there is an additional dimension that the above discussion fails to embrace. It has to do, not with the sexual orientation of same-sex parents, as maintained, but with the same-sex filiation that recognition entails, and the difficulty of the law of parentage in the jurisdiction concerned to accommodate this specific legal effect. Admittedly, the said aspect was neither put forward in the decision of the Tribunal fédéral and the submissions of the Swiss Government, as a collective interest counteracting recognition. Here, when the obstacle of the ordre public is raised (see paras. 14, 61-62 and the relevant private international law provision at para. 24), the eye is turned on the prohibition of surrogacy in Switzerland and the aspiration to prevent its circumvention via ‘reproductive tourism’; the latter could be precisely discouraged by non-recognition.
The ECtHR, on its part, perceives the legitimate aims pursued by non-recognition accordingly, further analysing them into the aim of ‘protection of health’ and the aim of ‘protection of the rights and freedoms of others’, named in art. 8 § 2 ECHR (para. 74; see moreover paras. 92-93). In reality, the challenge posed by same-sex parentage goes beyond that. This is because same-sex parentage does not sit well with the primary representations and organising principles governing the assignment of parental status in a heteronormative system –as was the one being enforced before 2018 in Switzerland–, which disapproves of the coexistence of two fathers or two mothers of the child, as a formal contradiction to ‘procreative truth’ (cf. on this ‘double ordre public problem’ also Witzleb, here, pp. 226-227, 234). It could be argued, therefore, that, somehow, the whole dispute touches on the ‘protection of morals’, too.
Perhaps, the ECtHR does not err in this holding (but see the partially dissenting opinion of Judge Elósegui). Yet the assumption is not proven, as long as the above element –the ‘protection of morals’– remains out of the scales and is not balanced against the right of the child for recognition of its second father. This seems most disappointing, speaking of a judgment explicitly committed ‘to clarify, safeguard and develop the norms of protection provided in the Convention’, namely to set standards that will affect in particular the states for whom a recognition under ‘circumstances similar to those found at the origin of the present case’ is still not forthcoming (para. 38) –what we have here is no less than the majority of states within the Council of Europe (see ILGA). To these all, it is stressed that they currently underperform and that they must adjust their legislations in order to keep pace with the Convention. The child comes first. Their only margin of appreciation is in the choice between the ab initio recognition through transcription of the birth certificate designating the same-sex parent as legal parent, or the recognition ex post through ‘alternative [prompt and effective] means’, and in substance same-sex step-parent adoption, which is presumably from their standpoint the lesser of two evils.
Until now, the ECtHR imposed same-sex step-parent adoption if the state had, on its own initiative, opened it up to unmarried heterosexuals, omitting to treat the unmarried homosexuals on an equal footing (see X. and Others v. Austria (2013)). Otherwise, the state retained the power to withhold it (from both groups). This power is eventually removed in D.B. It is hardly understandable how such a momentous transition takes place without anyone bringing up the elephant in the room: the resistance of the model of ‘traditional family’ to the kind of restructuring of filiation claimed by gay and lesbian couples (by contrast, this consideration was central in the CJEU’s handling of the Case C-490/20 V.М.А. v. Stolichna obshtina, rayon ‘Pancharevo’, 2021, where the obligation for recognition of same-sex parentage was affirmed in a meticulously moderate manner, so as to enable the child to exercise its rights to free movement and residence within the EU, and not ‘for purposes other than [that]’, in the wider area of family law, to the detriment of the member-state’s (Bulgaria’s) ‘constitutional and national identity’ (see paras. 49-57)).
2. The extension of the Advisory Opinion in a time before 2019
It is not unheard of for the ECtHR to scrutinise for a possible violation of the ECHR the national law as it stood in the past, albeit it has been in the meantime amended and no longer raises an issue at the point of adjudication. This may happen if the matter is still unresolved (see art. 37 § 1 b ECHR), because the applicants were never offered appropriate redress for the consequences they suffered on account of the possible violation (para. 36).
The ECtHR sees the applicants in D.B. to meet this condition. Indeed, from the date when the petition for recognition was dismissed (30 April 2011) until the date when the adoption was pronounced (21 December 2018), there was ‘no possibility’ of recognition of the child-parent relationship for them in Switzerland (para. 37). Moreover, the state had neither acknowledged nor afforded just satisfaction for a breach of art. 8 ECHR. But, was there ultimately a breach of art. 8 ECHR along the way? To answer this, the ECtHR does not hesitate to draw from the Advisory Opinion delivered in 2019 (see paras. 87-90), which is here applied ‘retroactively’ on a situation preceding it (see the partially dissenting opinion of Judge Elósegui, paras. 5, 6, 20). The verdict is as follows: The ‘general and absolute impossibility’ of recognition ‘for a significant period of time’ (approximately 7 years and 8 months) was not compatible with ‘the best interests of the child’, exposing it to ‘legal uncertainty’ and depriving it of ‘the chance to live and develop in a stable environment’. A ‘prompt’ and ‘effective’ procedure for recognition should be available much earlier; by not making a ‘timely legislative provision’, the state had overstepped its margin of appreciation (see para. 89 and Press Release, pp. 1, 4). However, this is not a solid approach. For two reasons:
– First, it blatantly contradicts the findings of the ECtHR in C. and E v. France (2019, see paras. 42-43) and D. v. France (2020, see para. 67), regarding recognition of filiation of children with the intended mothers having availed of surrogacy abroad (together with their husbands). In these cases, in short, the intended mothers were not eligible for recognition in 2014, when they initially sought the transcription of the birth certificates, but became eligible for recognition in 2017, when the Court of Cassation finally unblocked for them the avenue of adoption. Therefore, from 2014 until 2017 there was ‘general and absolute impossibility’ of recognition, which lasted ‘for a significant period of time’ (on the average, 3 years). Despite that, the ECtHR, handing down its judgments in 2019 (for C and E) and in 2020 (for D) respectively, not only did not contemplate a retroactive extension of the Advisory Opinion on the facts of the cases, but further emphasised that ‘it would not impose an excessive burden on the concerned children’ (nota bene: already 7 years old and 3 years old in C and E, and 5 years old in D), ‘to wait’ some more time the intended mothers to engage now in adoption (which they had still not taken advantage of).
– Second, supposing that the ECtHR in D.B. is entitled to revisit its prior stance, again, it does not employ a proper method to perform the retroactive extension. Exactly at what point, before 2019, did the ‘present-day conditions’ –and not merely the conditions that might prevail some day in the future (see Sicilianos, here, p. 5)– warranty the evolutive interpretation advanced subsequently in 2019 by the Advisory Opinion? Strikingly, the ECtHR does not fix the point of departure in 2014, to lean on Mennesson v. France (2014) and Labassee v. France (2014), but shifts it further back to 2011, when the standoff with the domestic authorities around recognition emerged. This is no less than to say that the meaning fostered in the Advisory Opinion had been conceived in the lead-up to the foundational judgments on which the Advisory Opinion itself was later premised. Had the circumstances been different and the child’s birth occurred before 2011, who knows up to where the ECtHR would be willing to retreat to rewrite human rights history for the child’s sake (see also the partially dissenting opinion of Judge Elósegui, para. 6, indicating the ‘anachronism’ of that reasoning).
By way of conclusion, let it be said that the judgment attracts criticism yet on another note. The applicants complained that the procedure of adoption, which was initiated in January 2018 and was finalised in December 2018, lasted too long to be considered ‘prompt’ and ‘effective’ in the sense of the Advisory Opinion (paras. 33, 34, 95). It should be recalled that in C et E v. France (2019) and D v. France (2020), the ECtHR had deemed reasonable that the average duration to obtain a decision in France ‘is only’ 4.1 months in the case of full adoption and 4.7 months in the case of simple adoption (see C and E, para. 43 and D, para. 67). This timeframe is exceeded by far here, and theoretically it might be exceeded even more, due to the unwieldy requirements imposed by Swiss law for step-parent adoption (see Brodeală and Peter-Spiess, here, pp. 415 ff). Therefore, it is not accurate that the adequacy of the means of recognition ‘does not raise any distinct essential question’ and does not merit examination in its own right (para. 97). For couples who will continue struggling for recognition not only in, but also outside Switzerland, it is important to have an idea on how much delay they are expected to tolerate under the ECHR before they can attain their goal. Evidently, the ECtHR overlooked this need to sort out an issue which is likely to resurface in future cases of cross-border surrogacy.