EHRM, 18-05-2021, nr. 71552/17

The case concerns the non-recognition of a parent-child relationship between the first two applicants and the third applicant, who was born by way of gestational surrogacy in the United States. The first and second applicants are the third applicant's intended parents, but neither of them has a biological link with him.

The applicants were born in 1978, 1977 and 2013 respectively and live in Kópavogur. The applicants were represented by Ms Þyrí Steingrímsdóttir, a lawyer practising in Reykjavik. The third applicant's application was lodged on the authority of his legal guardian, Ms M. (see paragraph 8 below).

The Government were represented by their Agent, Mr Einar Karl Hallvarðsson, Attorney General of Iceland.

The facts of the case, as submitted by the parties, may be summarised as follows.

The first and second applicants were a married couple who engaged the paid services of a surrogacy agency based in the United States and concluded a surrogacy delivery plan, in accordance with which they were to be the intended parents of a child born by way of gestational surrogacy. They subsequently travelled to California, where a son, the third applicant, was born to them via a surrogate mother in February 2013. The child was conceived using in vitro fertilisation with donor gametes and is not biologically related to either the first or the second applicant. Upon the child's birth, the first and the second applicant were registered in California as his parents and a birth certificate to that effect was issued, together with a US passport for the child. The submitted documents indicate that the surrogate mother has waived any claim to legal parenthood in respect of the third applicant.

Three weeks after the third applicant's birth the three applicants travelled to Iceland. Shortly thereafter, the first and second applicants applied to Registers Iceland for the third applicant's registration in the national register. The application was made using the form for Icelandic nationals born abroad who were automatically entitled to Icelandic citizenship, and included the third applicant's birth certificate issued in the United States. Upon enquiries being made, the applicants later revealed to Registers Iceland that the third applicant had been born via gestational surrogacy.

On 18 June 2013 Registers Iceland denied the request for registration of the third applicant. The decision stated that as the child had been born in the United States to a surrogate mother, Icelandic legal provisions on a child's parentage were not applicable, and the child was therefore not automatically entitled to citizenship under Act no. 100/1952 on Icelandic Citizenship (see paragraphs 29 to 30 below). The decision also stated that Registers Iceland considered the third applicant to be a foreign citizen whose registration and residence fell under Act no. 96/2002 on Foreigners (see paragraph 32 below). The first and second applicants appealed against that decision to the Ministry of the Interior.

In the meantime, the third applicant was considered to be a foreign national and an unaccompanied minor in Iceland. The child protection committee in the applicants' municipality therefore took legal custody of him by a decision of 26 September 2013 and appointed him a legal guardian, Ms M., in accordance with Child Protection Act no. 80/2002. Initially, an agreement was made with the first and second applicants for the third applicant to be placed in their care until a permanent foster agreement was made with them.

On 27 March 2014 the Ministry of the Interior confirmed Registers Iceland's decision to deny the third applicant's registration in the national register. The decision stated that under Icelandic law, the woman who gave birth to a child was always considered its mother, regardless of whether the child was conceived using her gametes. The matter of the child's registration depended on whether he fulfilled the conditions of Icelandic citizenship, and could not be based on Act no. 160/1995 on the Recognition and Enforcement of Foreign Decisions on Child Custody, the Return of Abducted Children, and so on (see paragraph 34 below). The child was not automatically entitled to Icelandic citizenship, given that: he had been born in the United States; the surrogate, who under Icelandic law was considered to be the child's mother, was a US citizen; and nothing had been submitted indicating that the child's biological father was an Icelandic citizen. The ministry therefore confirmed Registers Iceland's decision to refuse the third applicant's registration in the national register.

The applicants sought judicial review of that decision and were granted State legal aid for the purposes of those proceedings. They demanded the annulment of the ministry's decision and a declaratory judgment to the effect that Registers Iceland was obligated to register the first and second applicants as the third applicant's parents, in accordance with the child's birth certificate.

While the proceedings before the District Court of Reykjavik were pending, the third applicant was granted Icelandic citizenship following the adoption of Act no. 128/2015 on the Granting of Citizenship, which came into force on 31 December 2015. He was subsequently entered in the national register as an Icelandic citizen, but the first and second applicants were still not registered as his parents.

Additionally, while the proceedings before the District Court were pending, the first and second applicants divorced in May 2015. As a result, the permanent agreement for their foster care of the third applicant became invalid. A new foster care arrangement was subsequently made on 9 December 2015, under which the third applicant was fostered by the first applicant and her new spouse for one year while enjoying equal access to the second applicant. Later, the third applicant was fostered by the second applicant and her new spouse for one year while enjoying equal access to the first applicant. The Supreme Court delivered a judgment in the present case on 30 March 2017 (see paragraphs 22 to 24 below), and as domestic law only allows for temporary foster care arrangements for up to two years, the third applicant has been permanently fostered by the first applicant and her spouse since 18 December 2019, but continues to enjoy equal access to the second applicant and her spouse.

The child protection committee's decision regarding permanent foster care, dated 18 December 2019, noted that the aim of the temporary foster care arrangements had been for the third applicant to be cared for by his ‘mothers’ according to his birth certificate, which had been considered to be in his best interests. The intention had been for those foster care arrangements to continue until the first and second applicants were granted custody of him, but that had not happened. An assessment of both intended mothers and their new spouses had found that all parties were competent to care for the child; the first and second applicants had cared for him well and they had cooperated well to ensure his best interests.

Prior to their divorce, the first and second applicants had applied to adopt the third applicant. By a letter of 7 October 2013, the District Commissioner of Reykjavik informed the applicants that the application for adoption could not be dealt with while the application for registration of parentage was still pending, as adoption presupposed that the adoptive parents were not the parents of the child. Noting that the result of the registration case before the Ministry of the Interior could affect the adoption proceedings, the Commissioner announced that the processing of the adoption application would be put on hold.

After the Ministry of the Interior had delivered its decision in the registration proceedings, the applicants received a second letter from the District Commissioner, dated 28 May 2014. The letter stated that under the general rule on parentage, and in the light of the ministry's conclusion in the registration proceedings, the Commissioner considered the surrogate mother to be the third applicant's mother, and as it appeared from the case file that she was married, her husband was considered the father. They should therefore be considered the child's guardians, and thus their consent had to be obtained pursuant to sections 7, 8 and 9 of the Act on Adoption (see paragraph 33 below). The Commissioner requested that the applicants submit information about the address of the surrogate mother and her husband, and confirmation of her marital status. Furthermore, the Commissioner's letter noted that under section 14 of the Adoption Act, permission to adopt could not be granted if any party giving consent to the adoption received a fee or benefits in relation to the consent, including pay for loss of income. The Commissioner requested declarations from the first and second applicants confirming that such a payment had not been made, and noted that the surrogate mother and her husband would be asked to submit similar declarations.

The applicants replied to this second letter on 23 July 2014. In their reply, they protested against the Commissioner's position, stating that even if the surrogate mother were considered to be the third applicant's parent, she should in any event not be considered to be a parent with custody, and therefore her consent to his adoption should not be required (see section 7(1) of the Adoption Act, paragraph 33 below). They submitted that it was Ms M.'s consent, as the third applicant's legal guardian, which should be obtained pursuant to section 7(3) of the Adoption Act (see paragraph 33 below). They furthermore submitted that the surrogate mother was not married, and that the first and second applicants had not made any payments in connection with consent for adoption within the meaning of section 14 of the Adoption Act, which Ms M. would confirm. This letter had still not been answered by the time the first and second applicants divorced, when they withdrew their application for adoption, by a letter of 10 January 2015.

By a judgment of 2 March 2016, the District Court rejected the applicants' claims for the ministry's decision to be annulled and for Registers Iceland to register the first and second applicants as the parents of the third applicant.

The District Court found that in accordance with the fundamental principles of Icelandic family law, the woman who gave birth to a child was considered its mother. Consequently, the first and second applicants could not be considered the third applicant's parents. The District Court also noted that the principles of private international law generally did not require a State to recognise a decision rendered by the authorities of another State if it was manifestly incompatible with the fundamental legal principles of the former State, even if the decision was compatible with the laws of the latter. Noting that surrogacy was unlawful in Iceland, and punishable by fines or up to three months' imprisonment in the event of a violation within Icelandic jurisdiction, the District Court found that recognising as parents those who were resident in Iceland but went abroad for the purposes of surrogacy would create a legal loophole around the ban on surrogacy. The District Court therefore found that the Icelandic State had a legitimate reason to refuse to recognise parentage established abroad in such circumstances.

As for the third applicant's right to respect for his private and family life, the District Court recognised that ‘family life’ had been established between the three applicants, and that the authorities' refusal to register the third applicant as the first and second applicants' son in the national register had interfered with his private and family life. However, that interference had served the aim of upholding the ban on surrogacy and thereby protecting the interests of others, namely preventing women from being pressured into carrying children for others and ensuring that children could seek information about their heritage. The District Court noted that the authorities had taken steps to ensure the child's best interests and to counteract the difficulties which the applicants had experienced as a result of the refusal to register the third applicant, by allowing the third applicant to be fostered by the first and second applicants to preserve the family bond between them, and by granting the third applicant a residence permit and subsequently citizenship.

The District Court also discussed the application for the third applicant's adoption. It noted that special rules applied to the adoption of a child by its foster parents, in accordance with which a child could be adopted without the approval of its biological parents if this was clearly in the child's best interests. Accordingly, the District Court considered that the adoption application would probably have been approved if the first and second applicants had not divorced.

In the light of these considerations, the District Court found that the interference with private and family life caused by the refusal to register the third applicant had been necessary to protect morality and the rights of others, and that it had been accompanied by sufficient counter-balancing efforts to alleviate the negative effects of the refusal. The child's best interests, although of paramount importance, could not override the fundamental legal principles of parentage.

The applicants appealed against the judgment to the Supreme Court of Iceland. By a judgment of 30 March 2017, the Supreme Court upheld the District Court's rejection of the applicants' claims.

The Supreme Court, like the District Court, found that the authorities had been entitled to refuse to recognise family ties which had been established in a manner contrary to the fundamental principles of Icelandic family law. In this regard, the Supreme Court held that neither the first nor the second applicant could be considered to have been the third applicant's mother at the time of his birth, under Icelandic law. The Supreme Court emphasised that the fourth paragraph of section 5 of Act no. 55/1996 on Artificial Fertilisation and the Use of Human Gametes and Embryos for Stem Cell Research explicitly banned surrogacy (see paragraph 28 below). The Supreme Court also noted that under the first paragraph of section 6 of Children Act no. 76/2003, a woman who gave birth to a child conceived by assisted conception treatment had to be regarded as its mother (see paragraph 27 below). Pursuant to the second paragraph of section 6 of the same Act, a woman who had consented to her wife undergoing such treatment had to be regarded as the child's parent (see paragraph 27 below). Considering this, the Supreme Court found that only the woman who gave birth to a child conceived by artificial fertilisation could be considered its mother under Icelandic law, and neither the first nor the second applicant had given birth to the third applicant.

Unlike the District Court, however, the Supreme Court found that no family life had existed between the applicants at the time when Registers Iceland's decision had been rendered, and that the refusal had therefore not constituted an interference with the right to respect for private and family life. In this regard, the Supreme Court referred to the Court's judgment in Paradiso and Campanelli v. Italy ([GC], no. 25358/12, 24 January 2017) and reasoned as follows:

As matters stand, pursuant to the child protection committee's decision of 18 December 2019 (see paragraph 12 above), the third applicant is thus permanently fostered by the first applicant and her spouse, but enjoys equal access to the second applicant and her spouse. Ms M. continues to act as his legal guardian.

The relevant provisions of the Icelandic Constitution (Stjórnarskrá lýðveldisins Íslands) read as follows:

Article 65

Article 71

The relevant provisions of Chapter I-A of Children Act no. 76/2003, entitled ‘Parents of children’, read as follows:

Section 2

Paternity rules applying to the children of married couples and [the children] of parents in registered cohabitation [arrangements]

Section 6

Parents of children conceived by assisted conception

Section 7

Registration of children in the National Register

The relevant provisions of Act no. 55/1996 on Artificial Fertilisation and the Use of Human Gametes and Embryos for Stem Cell Research read as follows:

Section 5

Artificial fertilisation treatment

Section 17

The relevant provisions of Chapter I of Act no. 100/1952 on Icelandic Citizenship, entitled ‘Citizenship acquired at birth, and so on’, read as follows at the time of the events:

Section 1

The relevant provision of Chapter II of Act no. 100/1952 on Icelandic Citizenship, entitled ‘Citizenship granted by legislation’, reads as follows:

Section 6

The relevant provisions of Child Protection Act no. 80/2002 read as follows at the material time:

Section 32

Appointment of a legal guardian

Section 65

Foster care

Section 66

Licencing

The relevant provisions of Act no. 96/2002 on Foreign Nationals, which was applicable at the time of the events, read as follows at the material time:

Section 1

Scope

Section 11

Basic requirements for a residence permit

The relevant provisions of Act no. 130/1999 on Adoption read as follows:

Section 2

Who can adopt

Section 7

Consent of the [person with custody] of the child, or [of] a legal guardian

Section 8

Form and content of consent

Section 9

Consent granted abroad

Section 14

Fee

Section 27

The adopted child's access to information

Section 36

Jurisdiction in adoption cases

Section 39

Adoption abroad that goes against the basic principles of Icelandic laws

The relevant provisions of Act no. 160/1995 on the Recognition and Enforcement of Foreign Decisions on Child Custody, the Return of Abducted Children, and so on read as follows:

Section 2

Section 7

The relevant provisions of Inheritance Act no. 8/1962 read as follows:

Section 34

Section 35

Icelandic Supreme Court case no. 661/2015 concerned the parentage of two children born via gestational surrogacy in Idaho in the United States, using the gametes of their intended father. The children were born in early 2014 and brought back to Iceland by their intended parents, where they applied to Registers Iceland for the children's registration. Registers Iceland refused the children's registration on the same grounds as those in the present case. The children were subsequently granted Icelandic citizenship by an Act of Parliament. Upon registering them as citizens, Registers Iceland registered the intended father as both the children's father and the person with custody of them, considering that the judgment of an Idaho district court confirming that the intended parents were the children's parents had established the intended father's biological parentage in a manner consistent with Icelandic law. However, Registers Iceland refused to register the intended mother as the children's mother, citing the fundamental rule of Icelandic law that a woman who gave birth to a child was always considered its mother. The intended parents sued and demanded that the intended mother be registered as the children's mother. By a judgment of 2 July 2015, the District Court of Reykjavik found in favour of the intended parents, concluding that the refusal to register the intended mother as the mother had unlawfully interfered with the family's right to respect for private and family life. The Government appealed against that judgment, but prior to that appeal Registers Iceland complied with the District Court's ruling and registered the intended mother as the children's mother. The Government's appeal to the Supreme Court was therefore dismissed by a judgment of 9 June 2016, as an appeal to overturn the District Court's ruling was considered incompatible because that ruling had already been complied with.

Declares the complaint under Article 8 admissible and the remainder of the application inadmissible;

Joins to the merits the Government's preliminary objection concerning the exhaustion of domestic remedies and dismisses it;

Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 18 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško

Registrar

Paul Lemmens

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

P.L.

M.B.

It is not without some hesitation that I agreed with my colleagues that there has been no violation of Article 8 of the Convention insofar as that conclusion relates to the complaint about the alleged violation of the right to respect for private life (see paragraph 76 of the judgment). In this separate opinion, I would like to explain the reasons for my hesitation.

The judgment examines in detail the complaint concerning the right to respect for family life (see paragraphs 56–75). When it comes to the complaint regarding the right to respect for private life, it merely notes that the applicants' arguments relating to their private life are ‘in principle the same’ as those submitted with respect to their family life, and observes that, ‘in the light of this’, there is no reason to reach a conclusion that is different from the one with respect to family life (see paragraph 76 of the judgment).

It seems to me that private life and family life are conceptually different, and that complaints relating to these two aspects of Article 8 should therefore in principle be analysed independently from each other. Why not in this case?

Insofar as the applicants invoke a violation of their right to respect for family life, they complain about the refusal to register the first and the second applicant as the third applicant's parents (see paragraph 43 of the judgment). They argue that the State's interference has affected the stability of the ‘social relationship’ existing between the three applicants (see in particular paragraph 47 of the judgment). On this issue, the Court finds that the non-recognition of a formal parental link, despite the Californian birth certificate to that effect, does not exceed the margin of appreciation afforded to the State. In order to come to that conclusion, it takes into account ‘the absence of an indication of actual, practical hindrances in the enjoyment of family life, and the steps taken by the respondent State to regularise and secure the bond between the applicants’ (see paragraph 75 of the judgment).

The family-life complaint is thus basically considered from the point of view of the stability of the mutual enjoyment by parent and child of each other's company, which is indeed a fundamental element of family life (see, among many others, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII; K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII; and Strand Lobben and Others v. Norway [GC], no. 37283/13, § 202, 10 September 2019).

As the case-law shows, the right to respect for private life is usually concerned with another aspect of the situation arising from a gestational surrogacy agreement, namely the right of the child to the recognition of the legal parent-child relationship with the intended father (see Mennesson v. France, no. 65192/11, §§ 80, 96 and 99, ECHR 2014 (extracts), and Labassee v. France, no. 65941/11, §§ 38, 75 et 79, 26 June 2014), as well as with the intended mother (see Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16–2018-001, French Court of Cassation, § 46, 10 April 2019, and D v. France, no. 11288/18, § 54, 16 July 2020). That right is deemed to be part of the child's right to establish details of its identity as an individual human being (see Mennesson, cited above, § 96, and Labassee, cited above, § 75).

The Court has thus far limited the child's right to recognition of the legal parent-child relationship to relationships involving a biological link with at least one of the intended parents (see the Advisory opinion cited above, § 36). It has, however, indicated that ‘it may be called upon in the future to further develop its case-law in this field, in particular in view of the evolution of the issue of surrogacy’ (ibid.).

It seems to me that future development should not at all be excluded. The negative impact which the lack of recognition of a legal relationship between the child and the intended parents has ‘on several aspects of that child's right to respect for its private life’ (ibid., § 40, with an enumeration of a number of disadvantages for the child) applies to all children born through a surrogacy arrangement carried out abroad. Indeed, for the children the impact is the same, whether or not one or both of their intended parents has a biological link with them. In both situations, I wonder whether the legal limbo in which a child finds itself can be justified on the basis of the conduct of its intended parents or with reference to the moral views prevailing in society.

It is true that adoption is a means of recognising a parent-child relationship. However, as the facts of the present case show, adoption is not always a solution for all the difficulties which the child may be experiencing (see paragraph 74 of the judgment).

It is for the above reasons that I hesitated to agree with the conclusion adopted in paragraph 76 of the judgment.

What convinced me, however, was that this case is not the right one to deal specifically with the third applicant's right to respect for private life.

Indeed, the proceedings before the domestic courts dealt with the authorities' refusal to register the relationship between the three applicants. While the courts in their decisions referred to private and family life, their reasoning seems to have focused on the interference with family life. Following this approach on the part of the domestic courts, the applicants in their application to the Court relied explicitly on the right to respect for family life and did not mention the right to respect for private life.

In these circumstances, I agreed with the conclusion that there is in this case no reason to reach a different conclusion with regard to private life than in respect of family life.

The scope of the child's right to the establishment of a legal parent-child relationship, an element of its right to respect for private life, must be left for further consideration in another case.