February 10, 2023
By Marie-Hélène Peter-Spiess
In its recent judgment A.L. v. France, the European Court of Human Rights (the “ECtHR” or the “Court”) looked into the issue of domestic surrogacy and legal fatherhood in a situation where two paternal figures are on the line. More specifically, the case featured a surrogacy-born child that the surrogate entrusted to third parties, one of whom was legally recognised as the child’s father. The Court had to examine whether, after several years of litigation during which the child lived with his social parents, the French courts’ refusal to legally establish the paternity of the genetic father amounted to a violation of his right to respect for his private life. While such refusal was considered justified by the Court, the latter found a violation of the genetic father’s right to respect for his private life due to lengthy proceedings. The years of litigation had indeed resulted in the child’s best interests being served by not separating him from his social parents. In this post, I argue that the present judgement, which combines (domestic) surrogacy and the contesting of an established legal fatherhood, stands in contrast with the ECtHR dominant transnational surrogacy case-law on the role of genetics in filiation. In the presence of competing fatherly figures, the ECtHR ruled on the basis of an already accomplished fact, despite condemning such an approach. Finally, while the fact that social parenthood is given weight can be welcomed, some questions on the Court’s reasoning remain.
A male same-sex couple in civil partnership entered into a domestic surrogacy agreement in France. The surrogate became pregnant with the sperm of one of the partners, the applicant. Yet, upon birth, instead of handing over the surrogacy-born child to the intended parents, the surrogate entrusted the child to another – opposite-sex and married – couple in exchange for a price. One of the partners of this couple was subsequently recognised as the child’s legal father, to the detriment of the same-sex couple.
The applicant contested the legally recognised father’s paternity before domestic courts, requiring his own paternity to be established. Four years later, the court of first instance declared the applicant to be the child’s father and granted him exclusive parental authority, relying on a biological analysis evidencing his genetic paternity. A gradual transfer of residence was organised for the child. However, upon appeal by the social father, the Court of Appeal dismissed the applicant’s paternity request due to its being based on an illegal surrogacy agreement. In addition, the Court of Appeal deemed that the genetic link between the applicant and the child did not carry enough weight since the best interests of the child would not necessarily speak in favour of a change in filiation. More precisely, according to a psychiatrist who had examined the child at the request of the couple taking care of him, a change in residence – even gradual – might cause the child major difficulties. This was confirmed by the person representing the child in the proceedings.
The applicant filed an appeal with the French Court of Cassation, which was however dismissed. At that time, more than six years had passed since the initiation of proceedings. The genetic father therefore lodged an application before the ECtHR, arguing that the dismissal of his paternity claim constituted a disproportionate interference with his right to respect for his private life guaranteed by Article 8 of the European Convention on Human Rights (the “ECHR”) (§34).
In its judgment, the Court noted that the decision as to whether the genetic father should be allowed to contest a legally established paternity link to his child falls within the margin of appreciation of the States concerned. The Court added that the margin of appreciation is especially important when it comes to balancing competing fundamental rights of two individuals (§51). Yet the choices made by States are not beyond the ECtHR’s control. The Court must indeed consider whether a fair balance was struck between the interests involved. In doing so, it must have regard to the best interests of the child, which must always prevail (§52). As part of its review, the ECtHR must also ascertain whether the decision-making process afforded the applicant the necessary protection of his interests, particularly regarding the duration of the proceedings. Where one’s parental relationship is at stake, a duty of exceptional diligence arises since the passage of time might result in the matter being decided in virtue of a fait accompli (accomplished fact), i.e. the child having lived such a long time with the social parents that a separation would be harmful. (§54)
In this case, the ECtHR found that French courts had duly prioritised the best interests of the child. The Court looked into the balance struck between the applicant’s right to respect for his private life and his genetic son’s right to respect for his private and family life, requiring that the child’s best interests be prioritised. The ECtHR further noted that while biological reality undoubtedly carries weight in cases such as the present one, it is outweighed by the best interests of the child where the two do not coincide (§61). However, the Court approved the domestic courts’ view that the child might have an interest to learn the truth about his origins and to consider possible contacts with the applicant “when the time comes” (§64). Considering the above, the Court deemed the reasons given by domestic courts to justify the interference in the applicant’s rights as relevant and sufficient (Art. 8 § 2 ECHR) (§65).
The Court further noted that the domestic proceedings had lasted more than six years, which was incompatible with the duty of exceptional diligence required on the part of the respondent State. The child was four months old when the legal proceedings started, and six-and-a-half years old when these ended. Moreover, the Court of Appeal had taken into account in order to reach its conclusion that the relationship between the social parents and the child was already an accomplished fact (§70). The ECtHR therefore held that the applicant’s right to respect for his private life (Art. 8 ECHR) had been violated (§73). Yet the Court stressed that this finding of an ECHR violation could not be interpreted as calling into question the assessment by the previous instances of the child’s best interests and the dismissal of the applicant’s request.
The present judgement is of substantial interest for a variety of reasons.
First, the facts of this case differ from most surrogacy cases decided by the ECtHR. For a change, the case does not feature cross-border, but domestic surrogacy, the latter even leading to criminal convictions. Moreover, the applicant does not only struggle against authorities to get his filial link recognised, but also against another couple and the surrogate. As a result, the case involves two competing paternal figures. Finally, the judgement does not concern gestational, but traditional surrogacy, i.e. where the egg of the surrogate herself was fertilised.
Second, in contrast to the dominant ECtHR case-law on cross-border surrogacy, the present judgment departs from a certain supremacy of genetics in determining parenthood, and especially fatherhood. In a conflict involving two fathers, de facto family ties can indeed carry more weight if these are aligned with the child’s best interests. In its previous jurisprudence on transnational surrogacy, the ECtHR has tended to favour fathers who were genetically linked to surrogacy-born children. In fact, such fathers were repeatedly granted immediate legal recognition despite having resorted to surrogacy abroad, at least when the child’s right to respect for private life was concerned (see Mennesson v. France, Labassee v. France, Foulon and Bouvet v. France). In the famous Mennesson judgment particularly, the importance of biological parentage was seen as a “component of identity”, and its non-recognition was deemed contrary to the child’s best interests. Conversely, intended social fathers with no genetic connection to the child could be refused legal recognition (see Paradiso and Campanelli v. Italy). As Mélanie Levy rightfully pointed out, the ECtHR therefore seems to be stuck in a certain form of “genetic essentialism” in its case-law on the recognition of filiation following cross-border surrogacy, especially when fathers are concerned. However, when it comes to paternity proceedings that do not involve surrogacy, such a tendency cannot be observed. According to Alice Margaria, who notes a clear relevance of biology in the Court’s case-law on surrogacy-created fatherhood, the role of genetics when two paternal figures are competing is less straightforward. The claim of the “more caring” father seems to often prevail over that of the genetic one, as for instance in cases like Ahrens v. Germany. In the latter, to which the ECtHR refers in the present judgment, a genetic father was precluded from contesting the paternity of the social father who was living with the legal mother. Yet the Court held in another paternity case that biological filiation took precedence over social filiation (Mandet v. France). In this case, to which the present judgment also points, the Court deemed that the child’s best interests do not necessarily lie where the child perceives them (i.e. in maintaining the established filiation and preserving emotional stability), but rather in establishing his “real” (i.e. genetic) paternity.
Pursuant to the ECtHR, the child’s best interests – residing in staying with his social parents – were duly considered by the French courts, which also took the “biological truth” into account. Accordingly, certain boundaries to DNA reality are being set when these cannot be reconciled with the best interests of the child. This results in more importance being given to the caring father, despite the presence of a genetic one. A certain contrast to the “genetic essentialism” prevailing in the transnational surrogacy case-law can thus be observed. In this respect, the present judgment further illustrates Margaria’s assertions that, in the presence of two rivalling fathers, care can play a greater role than genetics, especially when – as in the present case – such care is provided in a marital context. In other words, the genetics criterion in determining legal fatherhood carries different weight depending on the circumstances.
While the fact that de facto family ties are given weight can be welcomed, some questions on the rationale remain. In particular, one may question whether the reasons provided by French courts to justify the interference at stake are really “relevant and sufficient” for the purposes of Art. 8 § 2 ECHR. The ECtHR’s corresponding reasoning is essentially based on the necessity to accommodate the best interests of the child. However, the reason for which such interests would lie in staying with his social parents is the passage of time. The child indeed had no connection with these individuals other than having been in their care. Had the case been decided earlier, the best interests of the child might have been just as well served by living with his genetic father.
In line with the above, one could also wonder why alternative solutions were not considered. These include, among others, letting the genetic father recognise his son but have the latter grow up with his social parents, or at least providing visiting rights to the genetic father. This would have been particularly important for the following reasons. First, the considerations provided in the domestic proceedings – that the best interests of the child required him to remain with his current social family – do not seem to be based on independently made reports. Rather, the Court of Appeal refers to the report of a psychiatrist who had been hired by the child’s social parents. Even though the child’s representative was of the same view, one could call the report into question. While courts cannot supplant the expertise of a professional, further examination by independent experts could have been asked for. This would have guaranteed an objective assessment of the situation. Second, the ECtHR mostly bases its review of the domestic courts’ dismissal of the claim on the assessment of the child’s best interests. Yet, by doing so, the Court largely ignores the fact that the primary argument of the national courts for such dismissal lied in the illegal recourse to surrogacy. It seems illogical that the domestic courts would put so much emphasis on it, since the social parenthood they support also stemmed from illegal behaviour. The French courts then mentioned that the biological truth did not appear to be a sufficient reason to admit the claim (§§ 21, 25), and that the child’s best interests would not necessarily (§§ 21, 58), respectively do not (§25) lie in having his current filiation modified. Despite that wording, the Court took the assessment of the child’s best interests by the domestic courts for duly justified.
Another interesting aspect of the present judgment is that the ECtHR ruled based on a fait accompli, despite condemning such approach. The fact that a violation of the applicant’s rights was found due to the lengthy procedure can be welcomed. Yet, it does not change the fact that the Court still seems to have conveniently relied on the fact that the child’s parentage was a fait accompli. By doing so, the Court could indeed avoid interfering in the consequences of domestic surrogacy where traditional family values were at stake. In this case, the factual reality of a traditional nuclear family (with an opposite-sex married couple as parents) was indeed opposing a non-traditional one (with a male same-sex couple in civil partnership as parents). As a result, a social father with no genetic connection to the child whatsoever got to keep his parental status due to the passing of time, despite having “purchased” the child, leaving the genetic father behind. In line with Margaria’s observations that the Court shows persistent attachment to certain fatherhood features, is the Court hanging on to traditional nuclear family settings? This appears to be especially relevant in a domestic context. Finally, another question remains: would the outcome have been different if the legal recognition of the parent-child relationship had been ruled on with regard to the child’s right to respect for his private life?
In addition to raising important child welfare issues, the present judgment leads to a fundamental questioning on which elements should prevail in the establishment of legal parenthood, especially fatherhood. While genetics is the ECtHR’s long favoured criterion for attributing legal fatherhood following cross-border surrogacy, the situation differs in case of domestic surrogacy. The Court indeed places a large importance on care when two paternal figures are competing, as noted by Margaria in the context of paternity proceeding cases. The best interests of the child – which in this particular case reside in staying with his social parents – must always prevail, even when it means securing the legal parenthood of a social father with no genetic connection to the child. This appears to be especially relevant in the context of domestic surrogacy, where the Court refrains even more from interfering. Finally, as the Court seems to grant varying weight to genetic parentage depending on the circumstances, the following question arises: how much importance does the Court attach to traditional family values? It remains to be seen which tendencies will be confirmed in future judgments on the topic.
 This work was supported by the University Research Priority Program “Human Reproduction Reloaded” of the University of Zurich. The author would like to thank Dr Elena Brodeala and Dr Alice Margaria for their useful comments, Prof. Sarah Franklin and Dr Edmée Ballif for a fruitful discussion on some of the ideas developed in this post, and Sarah Schoentjes for editing this post.
 Moreover, even if the Court is moving towards better legal recognition of social fathers, the latter cannot benefit from the same immediate recognition as genetic fathers. Rather, a social father whose partner – the genetic father – has been recognised under domestic law can be entitled to recognition via “other means” such as adoption. See the recent judgment D.B. and Others v. Switzerland, which features a male same-sex couple and which was rendered a few months after the present one.