The condition of adoption as recognition of the legal relationship between mother and child, born of a surrogate mother, does not constitute discrimination or violation of privacy.
JUDGMENT
D. v. France 16.07.2020 (app. no. 11288/18)
SUMMARY
The case concerned the refusal to record in the French register of births, marriages and deaths the
details of the birth certificate of a child born abroad through a gestational surrogacy arrangement in
so far as the certificate designated the intended mother, who was also the child’s genetic mother, as
the mother.
The Court observed that it had previously ruled on the issue of the legal parent-child relationship
between a child and its intended father where the latter was the biological father, in its judgments in
Mennesson v. France and Labassee v. France. According to its case-law, the existence of a genetic
link did not mean that the child’s right to respect for his or her private life required the legal
relationship with the intended father to be established specifically by means of the recording of the
details of the foreign birth certificate. The Court saw no reason in the circumstances of the present
case to reach a different decision regarding recognition of the legal relationship with the intended
mother, who was the child’s genetic mother.
The Court also pointed to its finding in advisory opinion no. P16-2018-001 that adoption produced
similar effects to registration of the foreign birth details when it came to recognising the legal
relationship between the child and the intended mother.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The applicants, Mrs D, Mr D, and Ms D, were born in 1972, 1957 and 2012 respectively and live in
Canet en Roussillon. The third applicant was born in Ukraine through a gestational surrogacy
arrangement. Her birth certificate, issued on 3 October 2012 in Kyiv, states that the first applicant is
her mother and the second is her father.
Mr and Mrs D were married in France in 2008. The child was born in Ukraine in September 2012 to a
surrogate mother. The birth certificate issued in Kyiv names the first applicant as the mother and the
second applicant as the father, without mentioning the woman who gave birth to the child.
On 20 September 2014 the first two applicants applied to the French embassy in Kyiv to have the
details of the birth certificate entered in the French register of births, marriages and deaths. The
deputy consul replied that on account of the specific nature of the situation she had decided to
defer recording the details and issuing the family record book (livret de famille) and to refer the matter to the public prosecutor in Nantes. The latter informed the couple that pending instructions
from the Ministry of Justice concerning the follow-up to the Court’s judgments in Mennesson v.
France and Labassee v. France, all applications relating to surrogacy arrangements had been
suspended.
On 27 January 2016 Mr and Mrs D brought proceedings against the public prosecutor in the Nantes
tribunal de grande instance seeking an order for the details of the child’s birth certificate to be
entered in the French register.
On 12 January 2017 the Nantes tribunal de grande instance granted the application. It emphasised,
among other points, that the fact that the birth certificate designated the first applicant as the
mother, even though she had not given birth, could not, having regard to the best interests of the
child as determined by the European Court of Human Rights, justify a refusal to recognise the legal
mother-child relationship, which was “the only relationship recognised as legally established in the
country of birth” and which therefore corresponded to the legal reality.
On 18 December 2017 the Rennes Court of Appeal upheld the judgment of 12 January 2017 in so far
as it approved the application to record the details of the birth certificate in respect of the
father-child relationship, but overturned it with regard to the mother-child relationship. The
judgment stated in particular that “… concerning the designation of the mother on the birth
certificate, the reality within the meaning of [Article 47 of the Civil Code] is the very fact of giving
birth. While the law may transform that reality within the meaning of [that provision], positive law
permits an exemption from the principle mater semper certa est only in a limited number of
situations expressly provided for by the legislature, in the context of full adoption (Article 356, first
paragraph, of the Civil Code), thus enabling an adoptive mother who has not given birth to be
properly designated as the mother …”
The applicants did not appeal to the Court of Cassation.
On 12 September 2019, in response to a request for information from the President of the Chamber,
the applicants informed the Court that Mrs D was Ms D’s genetic mother.
THE DECISION OF THE COURT…
Article 8
The Court noted that the Rennes Court of Appeal had granted the request for the details of the third
applicant’s Ukrainian birth certificate to be entered in the French register of births in so far as it
designated the second applicant, who was the intended father and the biological father, as the
father, but had refused the request in so far as the birth certificate designated the first applicant as
the mother. However, the Court of Appeal had stressed that the mother-child relationship could be
legally established by means of adoption.
The Court observed that the applicants had argued in substance that the refusal to record the details
of the third applicant’s Ukrainian birth certificate in so far as it designated the first applicant as her
mother amounted to disproportionate interference with the child’s right to respect for her private
life, given that the first applicant was her genetic mother.
The Court had previously ruled on the issue of the legal parent-child relationship between the child
and the intended father where the latter was the biological father (see the judgments in Mennesson
v. France and Labassee v. France). According to its case-law, the fact that a genetic link existed did
not mean that the child’s right to respect for his or her private life required the legal relationship
with the intended father to be established specifically by means of registration of the details of the
foreign birth certificate. The Court saw no reason in the circumstances of the present case to reach a
different decision with regard to recognition of the legal relationship with the intended mother, who
was also the genetic mother.
It could not therefore be said that the refusal of the request to register the details of the third
applicant’s Ukrainian birth certificate in respect of the first applicant amounted to disproportionate
interference with the child’s right to respect for her private life simply because the first applicant
was her genetic mother, given that the legal mother-child relationship could in fact be established by
other means.
As to the proportionality of the interference with the third applicant’s right to respect for her private
life, the Court considered it decisive that the refusal of the request for registration of the details of
the Ukrainian birth certificate in so far as it designated the first applicant as the mother did not
preclude the establishment of the legal mother-child relationship. Indeed, the Rennes Court of
Appeal had been careful to stress that the possibility of adoption was available, a position confirmed
by the case-law of the Court of Cassation.
As far as the third applicant’s right to respect for her private life was concerned, she had to have
access to an effective and sufficiently speedy mechanism enabling her legal relationship with the
first applicant to be recognised.
As emphasised by the Government, since the first and second applicants were married and the
Ukrainian birth certificate made no mention of the woman who had given birth to the child, it was
open to the first applicant to apply to the courts to adopt her spouse’s child by way of full adoption.
As the Court had observed in its advisory opinion no. P16-2018-001, adoption produced similar
effects to registration of the foreign birth details when it came to recognising the legal relationship
between the child and the intended mother.
The Court observed that it transpired from the information provided by the Government that the
average time taken to obtain a decision on full adoption was only 4.1 months. Hence, if the adoption
procedure had been initiated following the Rennes Court of Appeal’s judgment of 18 December
2017, the situation of the third applicant regarding the legal mother-child relationship would in all
likelihood have been resolved before she reached the age of six, and at around the time when the
applicants had applied to the Court.
Thus, the Court concluded that adoption of the spouse’s child constituted in the present case an
effective and sufficiently speedy mechanism enabling the legal relationship between the first and
third applicants to be recognised.
Accordingly, in refusing to record the details of the third applicant’s Ukrainian birth certificate in the
French register of births in so far as it designated the first applicant as the child’s mother, the
respondent State had not overstepped its margin of appreciation in the circumstances of the present
case.
There had therefore been no violation of Article 8 of the Convention.
Article 14 read in conjunction with Article 8
In their further observations of 11 February 2020 the applicants argued that refusing to record the
details of the birth certificate of a child born abroad through surrogacy in so far as the certificate
designated the intended mother, who was the genetic mother, as the child’s mother, while
recording the details in respect of the intended father, the child’s biological father, amounted to
discrimination against the mother.
The Court noted that the applicants’ argument amounted to a complaint of discrimination within the
meaning of Article 14 of the Convention in respect of the first applicant. It observed that this
complaint was separate from the other complaints, which concerned only the rights of the third
applicant, and that it was based on a fact – the circumstance that the first applicant was the child’s
genetic mother – which the applicants had omitted to mention in their application of 2 March 2018,
and which they had disclosed to the Court only on 12 September 2019. The applicants had likewise
omitted to inform the domestic authorities and courts of this fact, which had therefore not been
examined in the domestic proceedings. The Court found that this fresh complaint did not comply
with the six-month time-limit under Article 35 § 1 of the Convention, and therefore dismissed it
under Article 35 §§ 1 and 4 of the Convention.
However, the Court noted that the complaint concerning the discrimination allegedly suffered by the
third applicant in the enjoyment of her right to respect for her private life was not manifestly illfounded,
nor was it inadmissible on any other ground referred to in Article 35 of the Convention. It
therefore declared it admissible.
In the Court’s view, the difference in treatment between French children born abroad through
surrogacy and other French children born outside the country did not lie in the fact that the former –
unlike the latter – could not obtain recognition in domestic law of a legal mother-child relationship
with the person named on the foreign birth certificate. Rather, it consisted in the fact that at the
relevant time the former, in contrast to the latter, could not obtain the entry in the register of the
full details of that birth certificate and had to have recourse to adoption in order to have the
mother-child relationship legally established. As the Court had already emphasised, adoption of the
spouse’s child constituted in the present case an effective mechanism for recognition of the legal
relationship between the first and third applicants.
The Government had explained that this difference in treatment regarding the means of establishing
the legal mother-child relationship was designed to ensure, in the specific circumstances of each
case, that it was in the best interests of the child born through surrogacy for such a relationship to
be established with the intended mother. The Court therefore accepted that the difference in
treatment of which the applicants complained with regard to the means of recognition of the legal
relationship between such children and their genetic mother had an objective and reasonable
justification. Hence, there had been no violation of Article 14 read in conjunction with Article 8.
