Children born to a surrogate mother abroad. Does the refusal to register the birth certificate where it stated as the mother the “intended” mother rather than the biological one violate family life?
C and E v. France 12.12.2019 (no. 1462/18 and 7348/18)
Birth through a surrogate mother and the right to have a parental relationship with the person who the child wants. Refusal by the French authorities to enter into the French register full details of birth certificates of children born through a surrogate mother, whose birth was carried out using the intended father’s and a third donor’s gametes respectively, to the extent that the certificates were issued designate the “intended” mother as the legal mother.
The Court held that the French authorities ‘refusal was not disproportionate, as national law allows for the recognition of the parent-child relationship between the applicants’ children and the mother they seek to have through the adoption of the other spouse’s child. The Court noted, in particular, that the average waiting time for a decision was only 4.1 months until the full adoption procedure was completed and 4.7 months for simple adoption. The ECtHR held unanimously that the applications were inadmissible as manifestly unfounded.
Application no. 1462/18 was lodged by three French nationals: Mr and Mrs C, born in 1963 and
1965 respectively, and a child born in 2010.
The child was born in February 2010 in the United States, having been conceived using the gametes
of Mr C and a third-party donor. The birth certificate, drawn up in October 2010 in Florida, named
Mrs C as the mother and Mr C as the father.
In 2014 the couple requested that the particulars of the child’s birth certificate be entered in the
register of births, marriages and deaths at the French consulate in Miami. The request was
forwarded to the Nantes public prosecutor’s office as there were indications that Mr and Mrs C had
had recourse to a gestational surrogacy arrangement.
In 2015 Mr and Mrs C were informed by the Nantes public prosecutor’s office that their request for
registration had been refused. Relying on Articles 8 (right to respect for private and family life) and
14 (prohibition of discrimination) of the European Convention on Human Rights, the couple brought
proceedings against the public prosecutor in the Nantes tribunal de grande instance, seeking to have
the particulars of the child’s birth certificate entered in the register of births, marriages and deaths.
In 2016 the tribunal de grande instance granted their request. In 2017 the Rennes Court of Appeal
upheld that judgment in so far as it had granted the request for registration with regard to the legal
father-child relationship. However, it quashed the judgment in so far as it concerned the legal
mother-child relationship, on the grounds that the couple had entered into a surrogacy arrangement
abroad and Mrs C had not given birth to the child.
Application no. 17348/18 was lodged by five French nationals: Mr and Mrs E, born in 1962 and
1969, and three children born in 2014.
The three children were born in February 2014 in Ghana, having been conceived using the gametes
of Mr E and a third-party donor. Their birth certificates, drawn up in Ghana in May 2014, named Mrs E as their mother and Mr E as their father. Mr and Mrs E requested the French embassy in
Ghana to enter the details of the birth certificates in the register.
In 2014 the Nantes public prosecutor informed the couple that as the children had been born
through a gestational surrogacy arrangement, prohibited under Article 16-7 of the French Civil Code,
he had decided to defer registration of the details of the birth certificates pending instructions from
the Ministry of Justice.
In 2015 Mr and Mrs E brought proceedings against the Nantes public prosecutor in the tribunal de
grande instance, seeking registration of the details of the three children’s birth certificates. The
court granted their request and that judgment was upheld by the Court of Appeal in March 2017.
In 2018, following an appeal on points of law by the principal public prosecutor at the Rennes Court
of Appeal, the Court of Cassation quashed the Court of Appeal judgment in so far as it had ordered
registration of the details of the birth certificates with regard to the legal mother-child relationship.
THE DECISION OF THE COURT…
Article 8 (right to respect for private life)
The Court observed that, on 10 April 2019, it had delivered an advisory opinion (link) concerning
situations where children had been born abroad as the result of a gestational surrogacy
arrangement, having been conceived using the gametes of the intended father and a third-party
donor, and where the legal relationship between the child and the intended father had been
recognised in domestic law (link to press release).
The Court noted that the applicant children in the present case were in that same position. It also
observed that domestic law afforded a possibility of recognising the parent-child relationship
between the children and their intended mother by means of adoption of the other spouse’s child.
This was clear from the Court of Cassation judgments of 5 July 20171 , and the Court saw no reason to
doubt the assurances given by the Government in that regard. It was true that this possibility had
only been established with certainty since 5 July 2017, when child C had been seven years old and
the children of family E had been three years old, and thus in all likelihood some considerable time after the relationship between the children and their intended mother had become a practical
reality. In its advisory opinion of 10 April 2019 the Court had specified that, at the latest when,
according to the assessment of the circumstances of each case, the relationship between the child
and the intended mother had become a practical reality, an effective mechanism should exist
enabling that relationship to be recognised. Nevertheless, the Court considered that in the present
case it would not place an excessive burden on the children concerned to expect the applicants to
initiate adoption proceedings now for that purpose. The Court observed in particular that it emerged
from the information provided by the Government that the average waiting time for a decision was
only 4.1 months in the case of full adoption and 4.7 months in the case of simple adoption.
Consequently, the Court concluded that the French authorities’ refusal to enter the details of the
children’s foreign birth certificates in the French register of births, marriages and deaths in so far as
the certificates named the intended mother as the children’s mother was not disproportionate to
the aims pursued. This part of the applications was therefore manifestly ill-founded.
Article 14 (prohibition of discrimination) read in conjunction with Article 8
The Court specified that the only difference between “other children born abroad” and “children
born abroad through a gestational surrogacy arrangement” was that the latter could not have the
full details of the foreign birth certificate entered in the register, and had to have recourse to
adoption. It noted that it was clear from the Government’s explanations that this difference in
treatment regarding the means of establishing the legal mother-child relationship, since it entailed
supervision by the courts, made it possible to verify in the specific circumstances of each case
whether it was in the best interests of a child born through a gestational surrogacy arrangement for
such a relationship to be established with the intended mother. Furthermore, the Court had
indicated in its advisory opinion of 10 April 2019 that the choice of means by which to permit
recognition of the legal relationship between the child and the intended parents fell within the
States’ margin of appreciation, and that Article 8 did not impose a general obligation on States to
recognise a parent-child relationship between the child and the intended mother from the outset.
Consequently, the difference in treatment complained of was based on an objective and reasonable
justification. This part of the applications was therefore manifestly ill-founded.