Request for an advisory opinion under Protocol No. 16 to the Convention On 16 October 2018 the Court received a request for an advisory opinion on the question of surrogacy from the French Court of Cassation. The Panel of the Grand Chamber having accepted the request on 3 December 2018, a Grand Chamber was constituted in order to consider it.
Factsheet – Gestational surrogacy: This factsheet is not exhaustive and does not bind the Court
Cases concerning gestational surrogacy arrangements raise issues mainly under Article 8 (right to respect for private and family life) of the European Convention on Human Rights, which states:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In order to determine whether the interference by the authorities with the applicants’ private and family life was necessary in a democratic society and a fair balance was struck between the different interests involved, the European Court of Human Rights examines whether the interference was in accordance with the law, pursued a legitimate aim or aims and was proportionate to the aim(s) pursued.
Mennesson v. France and Labassee v. France
26 June 2014 (Chamber judgments)
These cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment. In both cases the applicants complained in particular of the fact that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of parent-child relationships that had been legally established abroad. The European Court of Human Rights firstly noted that in the present cases Article 8 (right to respect for private and family life) of the European Convention on Human Rights was applicable in both its “family life” aspect and its “private life” aspect. On the one hand, there was indeed no doubt that the applicants had cared for the children as parents since the children’s birth and they lived together in a way that was indistinguishable from “family life” in the accepted sense of the term. On the other hand, the right to identity was an integral part of the concept of private life and there was a direct link between the private life of children born following surrogacy treatment and the legal determination of their parentage. The Court then noted that the interference with the applicants’ right to respect for their private and family life resulting from the French authorities’ refusal to recognise the legal parent-child relationship had been “in accordance with the law” within the meaning of Article 8 of the Convention. The Court also accepted that the interference in question had pursued two of the legitimate aims listed in Article 8, namely the “protection of health” and the “protection of the rights and freedoms of others”. It observed in this regard that the refusal of the French authorities to recognise the legal relationship between children born as a result of surrogacy treatment abroad and the couples who had the treatment stemmed from a wish to discourage French nationals from having recourse outside France to a reproductive technique that was prohibited in that country with the aim, as the authorities saw it, of protecting the children and the surrogate mother. Lastly, examining whether the interference had been “necessary in a democratic society”, the Court stressed that a wide margin of appreciation had to be left to States in making decisions relating to surrogacy, in view of the difficult ethical issues involved and the lack of consensus on these matters in Europe. Nevertheless, that margin of appreciation was narrow when it came to parentage, which involved a key aspect of individuals’ identity. The Court also had to ascertain whether a fair balance had been struck between the interests of the State and those of the individuals directly concerned, with particular reference to the fundamental principle according to which, whenever children were involved, their best interests must prevail. In both cases the Court held that there had been no violation of Article 8 of the Convention concerning the applicants’ right to respect for their family life and a violation of Article 8 of the Convention concerning the children’s right to respect for their private life. The Court observed in particular that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr and Mrs Mennesson and Mr and Mrs Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society. The Court further noted that the case-law completely precluded the establishment of a legal relationship between children born as a result of – lawful – surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.
Similar cases in which, relying on its judgments in Mennesson and Labassee, the Court held that there had been no violation of Article 8 of the Convention as regards the applicants’ right to respect for their family life and a violation of Article 8 as regards the right to respect for private live of the children concerned: Foulon and Bouvet v. France, judgment (Chamber) of 21 July 2016; Laborie v. France, judgment (Committee) of 19 January 2017.