European Personal and Family Law: Foreign Surrogacy

Introduction

Advisory opinions in the world over, have been appreciated and acknowledged as an important source of law[footnoteRef:1], especially in the verge of jurisprudential development. Legal practitioners, diplomats and policy makers in Europe and beyond are agreeable to the fact that the precedents emanating from the European Court of Human rights has contributed positively towards the development of not only the human rights regime in Europe but also the practice of public international law[footnoteRef:2]. [1: Hambro, E. (1954). The authority of the Advisory Opinions of the International Court of Justice. International & Comparative Law Quarterly, 3(1), 2-22.] [2: Gerards, J. (2014). Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights: A Comparative and Critical Appraisal. Maastricht Journal of European and Comparative Law, 21(4), 630-651.]

The force that accompanies advisory opinions of domestic courts differ from one jurisdiction to another. Some states hold that advisory opinions from their courts of last resort, especially on important and contentious constitutional and human rights issues have a conclusive force, while others; majorly common law postulate that they only guide other courts and policy makers in arriving at decisions.

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Most advisory opinions of the European Court of Human rights, just as other regional and international courts have often been adopted, noted or acted upon by the states involved[footnoteRef:3]. The general acceptance of advisory opinions especially on human rights questions behooves states to understand and observe the same as a principle of good practice[footnoteRef:4]. [3: Marks, S. (1995). Civil liberties at the margin: the UK derogation and the European Court of Human Rights. Oxford J. Legal Stud., 15, 69.] [4: Stark, B. (2011). Transnational surrogacy and international human rights law. ILSA J. Int'l & Comp. L., 18, 369.]

The European Court of Human rights is under an obligation to facilitate the compliance with the European Convention of Human rights and its protocols[footnoteRef:5]. Whenever parties are eager of obtaining an interpretation of Convention, they often seek an advisory opinion in line with Articles 47, 48 and 49 of the Convention[footnoteRef:6] as read with the Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms[footnoteRef:7]. [5: Article 19] [6: All which point out that advisory opinions may only be sought by Committee of Ministers,] [7: That allows Highest courts and tribunals of High Contracting Party]

The French court sought the ECtHR’s opinion on the recognition in domestic law of the parent-child relationship between a child born of gestational surrogacy practiced abroad and the intended mother. The general procedure is that, once filed, these references are they are heard and determined by the Grand Chamber, who then deliver a decision through the Registrar.

The European Court of Human rights in pursuance of its jurisdiction under the Charter and the rules, recently rendered itself on the subject of domestic recognition of gestational surrogacy practiced in a foreign state at the request of the French court of Cassation. This essay shall address itself on the subject of gestational surrogacy and the effect of the European Court’s said recent pronouncement.

The advisory opinion sought from the court however did not transfer the determination of substantive determination of the suit before the Court of Cassation but was an action to assist it with the means and thoughts to guarantee the observance of the convention. The court therefore observed that the effects that may follow the opinion would be largely determined by the party which requested for it. The ECtHR does not compel the French Court of Cassation to take any particular action out of its advisory opinion. The opinion is meant to merely guide the applicant court.

This research thereby finds that the opinion by ECtHR’s has a persuasive force to governments and the Union in enforcing the provisions of the charter. The practice of parties is that they have often referred cases of such nature to the Court in order to have a more persuasive background when rendering their domestic decisions relating to the interpretation of the Convention. Therefore, both the Slydavian and Bordurian government are hereby advised that the case is not binding, but is most likely to be applied in its court as a persuasive precedent, and may to that extent be deemed binding as those of the International Court of Justice[footnoteRef:8]. It would therefore be useful to study and analyze the rationale thereof in order to align the respective governments to the existing world order. [8: Ago, R. (1991). “Binding” advisory opinions of the International Court of Justice. American Journal of International Law, 85(3), 439-451.]

The 10th April decision would still be subject to review, and may be dissented upon

Gestational Surrogacy, an introduction

Gestational surrogacy has indeed had an impact on gender issues. This is because it goes beyond the traditional concept of family where a person may only attain the title mother or father through sexual intercourse and heterosexual families’ adoption[footnoteRef:9]. The family law regime that was in question before the ECtHR was the recognition of 3 parties, namely- the intended father, the intended mother and the surrogate mother[footnoteRef:10]. [9: Hofman, D. L. (2009). ' Mama's Baby, Daddy's Maybe:' A State-by-State Survey of Surrogacy Laws and Their Disparate Gender Impact. William Mitchell Law Review, 35(2), 13.] [10: supra 31]

Since the surrogate only acts as the gestational mother of the child, the law as applicable in a number of EU states have no difficulty with recognizing the ‘intended father’ as the legal father but in a somewhat discriminative fashion, prohibits the recognition of a an intended mother as the legal mother and the transcription thereof in the child’s certificate.

This may as well be construed as a discriminative law that offends the provisions of the Convention on the Elimination of All Forms of Discrimination against Women in order to eliminate social and cultural stereotypes on differential treatment against women[footnoteRef:11]. The court was however not invited to consider this argument, and it therefore didn’t. Had this been analyzed alongside the best interest of the child, perhaps the opinion would have been different, as may have been the position in the dissenting opinion of the 6 justices in Paradiso and Campanelli v. Italy. [11: Bala, N. (2014). The Hidden Costs of the European Court of Human Rights’ Surrogacy Decision. The Yale Journal of International Law Online, 40, 11-19.]

Solutions beyond recognition

The court in its opinion provided an alternative to the recognition of parent- child relationships of children borne out of foreign gestational surrogacy, in view of the domestic laws. The court alluded to the alternative that exists; that is adoption, either full adoption, or simple adoption depending on the couple’s nature and preferences. These would however not be available to same sex marriages in a number of jurisdictions. Whereas gestational surrogacy would only be permissible amongst heterosexuals, the idea of medically assisted procreation would still operate to facilitate gestational surrogacy, so as to say that there are no alternatives to non-married couples.

There are a number of situations where a partner in a marriage has suffered infertility, or due to some complication, they are not able to give birth . This mechanism is conventionally also preferred by single parents, same sex couples or families as a precautionary measure against social problems associated with genetic links of their children to the surrogate mothers[footnoteRef:12]. [12: Tieu, M. M. (2009). Altruistic surrogacy: the necessary objectification of surrogate mothers. Journal of Medical Ethics, 35(3), 171-175.]

For such families, their greatest desire is not only to have a child, but also to be recognized as the child’s parents. Gestational surrogacy however acceptable in a number of states within the European Union, is prohibited in a number and tolerable in some[footnoteRef:13]; for both moral and economic reasons that may arise. In the verge of the international doctrine of friendly relations and accommodation, the European Union is however yet to formulate a standard regulative mechanism for its member states. Regulation is therefore entirely dependent on domestic legislation. [13: Boele-Woelki, K. (Ed.). (2003). Perspectives for the unification and harmonization of family law in Europe (Vol. 4). Intersentia nv.]

Article 8 of the European Convention of Human Rights encapsulates the right to respect for private and family life[footnoteRef:14]; which provision has elicited an interpretation to encompass the recognition of a parent- child relationship in a cross- border gestational surrogacy situation. States have endeavored to observe their obligations under the Convention, and they have in such circumstances sought the European Court of Human Rights’ opinion as to the extent in given situations. [14: Kilkelly, U. (2003). The right to respect for private and family life. A guide to the implementation of Article, 8.]

This essay has analyzed the basis of the European Court of Human Rights’ advisory opinion rendered at the request of the French court of last resort[footnoteRef:15] with respect to recognition of a parent- child relationship between a gestational surrogacy- born- child exercised abroad and the intended mother; this is to say; to analyze the possibility of obtaining recognition of the parent- child relationship with a child resultant of a gestational surrogacy practiced outside the prohibiting state; and its relevance to either states. [15: French Court of Cassation ]

Foreign law and reciprocity

States are often reluctant to accept external interference with its systems. States are often desirous of being governed by the laws of their laws, but may in given times give a reciprocal observance of foreign laws of countries who reciprocate by observing their own domestic laws

For states which have prohibited the practice of gestational surrogacy, some have either become tolerant while the rest absolutely intolerant and even avoid giving regard to the those that result from foreign practice. For those who permit it, they have either made it so in their legislations or adopted it by way of practice. In any event, states have often taken a domestic approach towards gestational surrogacy.

The court has adopted a somewhat uniform approach on the issue.In Mennesson v. France (no. 65192/11, ECHR 2014) about gestational surrogacy allowable in the USA but abhorred in France and the French government declined to recognize it. This was also the position in D. and Others v. Belgium ECHR 252 (2014) between Belgian and Ukrainian domestic laws; where the Belgian government declined to recognize the Ukrainian practice[footnoteRef:16] [16: Kirshner, S. N. (2015). Selling a Miracle: Surrogacy through International Borders: Exploration of Ukrainian Surrogacy. J. Int'l Bus. & L., 14, 77.]

As an international practice, states would have been expected to apply the reciprocity doctrine where states would ordinarily observe and allow a practice that has been considered sound by a neighboring or partner state[footnoteRef:17]. However, it is evident that with respect to gestational surrogacy, the diverse practice by states has always been to have a position with respect to recognition of gestational surrogacies practiced abroad[footnoteRef:18] [17: Levine, J. (2017). The plight of international child support enforcement. Child & Family Social Work, 22(2), 617-625.] [18: Sills, E. S. (Ed.). (2016). Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues. Cambridge University Press.]

Application of International Law

As a regional court, the ECtHR applied a number of conventions which informed its decision. The exercise of judicial authority of the court stems from Article 31 of the ECHR which gives it power to interpret and apply conventions and protocols, and just like other human rights’ courts, its decisions are applied in Europe and beyond in both binding and persuasive nature[footnoteRef:19]. [19: Nowak, M. (2018). A World Court of Human Rights. International Human Rights Institutions, Tribunals, and Courts, 271-290.]

The following are some of the Conventions observed by the ECtHR in rendering its opinion of 10th April 2019:

Convention on Rights of the Child (CRC)

The CRC is the most effective and comprehensive human rights’ treaty on the protection of the welfare and interest of a child[footnoteRef:20]. The ECtHR opinion addressed itself on the rights of a child against discrimination[footnoteRef:21], the right to live with their parents and only separated in extreme circumstances[footnoteRef:22]and the obligation of government to provide support to parents in delivering their parental responsibilities. [20: Detrick, S. (1999). A Commentary on the United Nations Convention on the Rights of the Child. Martinus Nijhoff Publishers.] [21: Article 2] [22: Doek, J. (2006). A Commentary on the United Nations Convention on the Rights of the Child, Articles 8-9: The Right to Preservation of Identity and The Right Not to Be Separated from His or Her Parents. BRILL.]

The court further applied Articles 1 and 2 of the Optional Protocol on the sale of children, child prostitution and child pornography with respect to upholding the prohibition on the transactional dealings and sale of children. In sum, the court appeared though not out rightly, to adopt the school of thought that opines that surrogacy is purely commercial[footnoteRef:23]. [23: Smolin, D. M. (2015). Surrogacy as the Sale of Children: Applying Lessons Learned from Adoption to the Regulation of the Surrogacy Industry's Global Marketing of Children. Pepp. L. Rev., 43, 265.]

The court further made a finding with respect to the contradicting US and France’s position on recognition of the mother, as undermining the child’s identity within the French society.

Hague Conference on Private International Law

The Court applied itself in recognizing the works that have from time to time been ongoing at the Conference, with the view of formulating and administering a treaty that would be acceptable amongst states. This may explain why the court stated that it may in future be called upon to develop its jurisprudence in the subject in view of the evolution of gestational surrogacy[footnoteRef:24] [24: Pertegás, M. (2017). Hague Conference on Private International Law. In Encyclopedia of Private International Law (pp. 871-875). Edward Elgar Publishing Limited.]

In the futuristic sense, should a treaty be negotiated, concluded and signed, the basis of the court’s opinion is likely to change.

·European Convention on Human Rights and protocols thereto

The ECtHR while rendering its opinion observed Article 8 that guarantees the right to respect private and family life. The opinion was sought on the basis of the refusal of French state to transcribe ‘legal mother’ the legal mother in the civil registry the birth certificate of a child borne abroad.

Whereas Article 8(1) guarantees the right, 8(2) permits a public authority to interfere with it in accordance with the law when necessary in a democratic society[footnoteRef:25] for the sake of the protection of inter alia health and morals and the rights and freedoms of others as was observed by the court in the case of Foulon and Bouvet v.France[footnoteRef:26] and Laborie v. France, no. 44024/13. The courts have applied the said provision while also upholding the right. [25: Mowbray, A. (2015). Subsidiarity and the European Convention on Human Rights. Human Rights Law Review, 15(2), 313-341.] [26: Storrow, R. F. (2018). International Surrogacy in the European Court of Human Rights. NCJ Int'l L., 43, 38.]

The Concept of the best interest of the Child

The best interest of the child must be given the primary consideration[footnoteRef:27] whenever states and other administrative bodies make decisions which have an effect on the child. Therefore, the decisions of bodies such as the ECtHR are supposed to ensure that the best interest of the child is given due regard. Cross border gestational surrogacy has faced a wide array of challenges. [27: Zermatten, J. (2010). The best interests of the child principle: literal analysis and function. The International journal of children's rights, 18(4), 483-499.]

Courts in other jurisdictions outside France have held that in situations of cross- border gestational surrogacy, that the best interest of the child demands that the child’s registration certificate be indicative of the intended mothers as the legal mothers, notwithstanding the difficulties in those jurisdictions[footnoteRef:28]that do not recognize artificial manipulation of genetics and the lack of verification of the fact of delivery.[footnoteRef:29] [28: Such as Japan] [29: Suzuki, K., Hoshi, K., Minai, J., Yanaihara, T., Takeda, Y., & Yamagata, Z. (2006). Analysis of national representative opinion surveys concerning gestational surrogacy in Japan. European Journal of Obstetrics & Gynecology and Reproductive Biology, 126(1), 39-47.]

In Campanelli v. Italy, the concept of the child’s best interest was restated as important, and that a number of considerations need to be put to consider that which the child’s best interest is. The court acknowledged that it was quite complex to uphold the best interest of the child whenever a foreign jurisdictional element was involved.

The Court was reluctant to deprive the child of the genetic relationship with its mother, and thereby destroying the biological relationship and as a result opined that the child’s best interest would demand that the child ought to have been allowed to know his or her biological link as was in Schlittner-Hay v. Poland (nos. 56846/15 and 56849/15). Further, in considering the best interest of the child, the court has taken an approach in laying emphasis on whether Article 8 of the ECHR ought to be accorded an interpretation that takes cognizance of the child’s right to recognition of the link between a child and the intended mother.

The best interest of the child would dictate that the child’s right to privacy be considered and upheld together with other fundamental elements that offer protection to the child but nonetheless are not in favour of the recognition of the child- parent relationship with the intended mother[footnoteRef:30]. All these operate to prevent any instances of abuse, and manipulation of the child as a result of gestational surrogacy on the possibility knowledge of the child of his origin as guaranteed by the CRC, as was hailed by the court in Mikulić v. Croatia, No 53176/99. [30: Goldstein, J., Freund, A., & Solnit, A. J. (1986). Before the best interests of the child. Simon and Schuster.]

The court whilst applying the above standards, upheld the child’s right to knowledge of the person responsible for raising him, meeting his needs and ensuring his well-being[footnoteRef:31]. It ultimately left this at the discretion of the state in providing an opportunity for the recognition of parentage before the child is legally designated a birth certificate, and thereby agreed to the need of robust domestic legislation, the presence of which, it refrained from interfering. While doing so, it attempted to balance a state’s discretion in making regulation on this, but in view of the best interest of the child, it reduced the state’s margin of discretion[footnoteRef:32] it therefore established that the concerned state would analyze and assess whether it would be necessary to issue a foreign birth certificate. [31: Goldstein, J., Freund, A., & Solnit, A. J. (1984). Beyond the best interests of the child (Vol. 1). Simon and Schuster.] [32: Fenton-Glynn, C. (2017). International surrogacy before the European Court of Human Rights. Journal of Private International Law, 13(3), 546-567.]

It therefore did not find any reason to hold that in the situation before it, there was a violation of Article 8 as the limitation thereof was to be considered on a case to case basis, which inclined towards permissible limitation under Article 8(2). It further therefore held that Article 8 does not require that the recognition does not make it necessary to transcribe such details, as there were other alternatives means of recognition.

With respect to other related rights, it was trite to the Court that from recognition of parenthood was the right to knowledge of one’s origin, the right to a nationality and the right to access of registration documentation[footnoteRef:33]. This argument would tilt towards allowing the recognition by transcribing on the register, but would nonetheless requiring a domestic legal framework for the action. [33: Kelly, J. B. (1997). The best interests of the child: A concept in search of meaning. Family Court Review, 35(4), 377-387.]

Conclusion and Recommendation

In view of the forgoing authorities as have been analyzed, it is therefore evident that the ECtHR has taken a hard stance against applying the ECHR against the domestic legislation of a state party to the EU. Particularly, where there is an allegation of violation of the Convention, a party so claiming must prove that the tenets of the violation are quite outright, unjustified and unnecessary. In the ECtHR’s notice and advisory opinion, it is clear that the same was not advanced or proved to the satisfaction of the court. The justification of the governments’ decision not to recognize parent- child relationships between the mothers and children resultant of a procedure prohibited in their laws, is purely in keeping up with their respective state sovereignty.

The Court took note of the region’s attitude towards the subject, finding that most European states (twenty four of the forty-three) had prohibited ‘foreign’ gestational surrogacy; while a minority (nine of the forty-three) permitted it in their laws, and with ten tolerating the practice. This should guide both governments of Slydavia and Bonduria in appreciating their stances on the subject, as members of the Council of Europe and the EU.

For the Slydavian government particularly, with its domestic laws prohibiting the practice, the Notice in effect requires of it to establish a justification as the basis of such prohibition; without which it is deemed to be in violation of the convention. The idea of adoption being alive in the state to the exclusion of same sex couples, may result into a dispute alleging violation of the Convention. in such an event; and in view of the precedence as hereinabove outlined, the court is likely to find fault. This is not to say that the Court may be persuaded to find otherwise as the court has often taken a case- by- case analysis of disputes brought before it.

The practice having been permitted in Bonduria, the impact is that a mother who is recognized as a parent of a child resultant of gestational surrogacy practiced in another state may not equally be accorded such recognition in Sydavia. The Bondurian government is therefore at a better position in negotiating with the view of persuading the Slydavian government as has previously been done. Owing to the fact that twelve out of the twenty-four European states that prohibit the practice allow for adoption, the Slydavian government may as well allow adoption even to same sex couples. This would build strong and peaceful relationships between the states, which, as the Court had contemplated, go ahead in establishing a uniform position on the subject amongst states.

The above notwithstanding, as it is presently, both states are still bound by their domestic legislation and are at liberty to consider the accommodative approach that has been taken by a number of states, who tolerate the practice. This would go a long way in facilitating good and uniform family law practices amongst European states.

References

1. International Treaties Convention on Rights of the Child
2. Convention on the Elimination of All Forms of Discrimination against Women
3. European Convention of Human Rights
4. Hague Conference on Private International Law
5. Hague Convention on Intercountry Adoption
6. Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms
7. Campanelli v. Italy
8. D. and Others v. Belgium ECHR 252 (2014)
9. Foulon and Bouvet v.France
10. Labassee v. France
11. Laborie v. France, no. 44024/13
12. Mennesson v. France (no. 65192/11, ECHR 2014)
13. Mikulić v. Croatia, No 53176/99
14. Paradiso and Campanelli v. Italy
15. Schlittner-Hay v. Poland (nos. 56846/15 and 56849/15).