Failure to strike a balance between the interests of children and that of the society to limit the commercial nature of adoption. Violation of children’s privacy
JUDGMENT
Κ.Κ. and others v. Denmark 06.12.2022 (app. no. 25212/21)
SUMMARY
The case concerned the refusal to allow the applicant K.K. to adopt the applicants C1 and C2 (twins) as a “stepmother” in Denmark. The twins were born to a surrogate mother in Ukraine who was paid for her service under a contract concluded with K.K. and her partner, the biological father of the children. Under Danish law, adoption was not permitted in cases where payment had been made to the person who had to consent to the adoption.
The European Court of Human Rights held that there had been:
unanimously, no violation of Article 8 (right to respect for family life) of the European Convention
on Human Rights., finding in particular that there had been no damage to the family life of the
applicants, who lived together with the children’s father unproblematically;
unanimously, no violation of Article 8 as regards the mother’s right to respect for her private life as
the domestic authorities had been correct in ruling so, in order to protect the public interest in
controlling paid surrogacy, over K.K.’s Article 8 rights; and
by 4 votes to 3, a violation of Article 8 as regards the right to respect for the private lives of the
two applicant children. The Danish authorities had failed to strike a balance between the interests
of the children and the societal interests in limiting the negative effects of commercial surrogacy, in
particular as regards their legal situation and legal relationship to K.K.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, K.K., C1 and C2, are Danish nationals who were born in 1967, 2013 and 2013
respectively and live in Copenhagen. K.K. is the mother of the other two applicants, who are twins.
In December 2013 a surrogate mother in Ukraine gave birth to C1 and C2 following a surrogacy
agreement with the intended parents of the children, K.K. and her husband, who was the biological
father. The birth certificates registered K.K. and her husband as the parents. In February 2014 the
children were brought to Denmark.
Although K.K. was not recognised as the mother under Danish law, she was given joint custody of
the children. The children were given Danish citizenship through their father.
K.K. also applied to adopt the children. That application was refused in February 2014 for the reason
that she had lived in Denmark with the children only for four days. That decision was upheld in 2016
by the National Social Appeals Board. K.K. took a case before the courts against that decision.
In November 2020 the Supreme Court found against K.K. in a 4-3 split decision. It noted the payment
of 32,265 euros to the clinic in Ukraine and the surrogate mother’s consent to the adoption, and
therefore held that the adoption ran counter to section 15 of the Adoption Act (that provision banned adoption in cases where consent had to be given by someone who had been paid). It furthermore held – with reference to the Court’s case-law – that the refusal did not run counter to Article 8 of the Convention. It referred to the Court’s finding acceptable a similar ban in France that
was intended on deterring its nationals from going abroad to make use of assisted reproductive
methods that were forbidden in that State. Among many other things, it observed that the Court had
asserted that “the best interests of the child do not merely involve respect for the child’s right to
private life, but also other components that do not necessarily weigh in favour of recognition of a
legal parent-child relationship between the child and the intended mother … [including] protection
against risks of abuse entailed by surrogacy arrangements”.
The dissenting opinion in the case stated that “children being barred from obtaining recognition that
the person whom they have regarded as their mother for their entire life [was] also their mother
from a legal point of view” would infringe the children’s rights under Article 8.
THE DECISION OF THE COURT…
Article 8 concerning family life
It was clear that the three applicants and the children’s father had lived together since coming to
Denmark and they are Danish citizens. As such, they had had no practical difficulties in enjoying
family life together, and there had been no violation of Article 8 in that regard. .
Article 8 concerning right to respect for private life of K.K.
In its judgment the Supreme Court concentrated on the right to respect for private life in respect of
C1 and C2. The Supreme Court appears to have taken it for granted that K.K.’s right to respect for
her private life –her right to personal development through her relationship with the children, and
continuing that relationship with them – was outweighed by the public interests at stake. That had
been in line with the Court’s reasoning in the relevant Advisory opinion (P16-2018-001) and in
Mennesson v. France (no. 65192/11). The Court therefore saw no reason to hold otherwise.
Accordingly, there had been no violation of Article 8 of the Convention with regard to K.K.’s right to
respect for her private life.
Article 8 concerning right to respect for private life of the child applicants
The Court observed that the Supreme Court had held that a ban on adoption in which payment to
the person consenting to it existed under section 15 of the Adoption Act. The intention had been to
stop children becoming a commodity.
It acknowledged the treaty requirements on and good faith of the Danish legislature when enacting
the relevant legislation. However, it restated that respect for the child’s private life, although it may
not require registration of the mother on the birth certificate, might call for some other measure
enabling legal recognition, such as adoption, to be permitted.
In the present case, the authorities had refused to allow the adoption, only shared custody. There
was thus no legally recognised parent-child relationship. This had placed the children in an uncertain
legal position as regards, for example, inheritance. The measures taken by the Danish authorities
had not compensated for this.
Reiterating that the interests of the child were paramount in such cases, the Court found that the
Danish authorities had failed to strike a balance between the interests of the children in this case
and the societal interests in limiting the negative effects of commercial surrogacy. There had
therefore been a violation of Article 8 as regards the resect for the private lives of C1 and C2.
Just satisfaction (Article 41)
The Court held, by 4 votes to 3, that Denmark was to pay the second and third applicants
5,000 euros (EUR) each in respect of non-pecuniary damage.
Separate opinions
Judges Kjøl
