The ECHR Refuses Parental Recognition for a Surrogate Child Born Abroad

On May 18, 2021, in its House judgment, the European Court of Human Rights (ECHR) unanimously concluded that refusing to recognize two persons as parents of a child born of surrogacy, does not violate the European Convention on Human Rights.

The case concerns Valdis Fjôlnisdottir and others versus Iceland, since the courts in Iceland refused to recognize any parental link between a lesbian couple and a baby boy born to a surrogate mother in the United States in 2013. Upon their return, three weeks after his birth, they applied for the infant to have Icelandic citizenship and to have him registered as their son. Since surrogacy is illegal in Iceland, neither of the two female applicants were recognized as the infant’s parent, since neither of them is biologically related.  The Icelandic authorities considered him to be an unaccompanied minor in Iceland, “but placed him in the foster care with the two applicants.” The women began adoption proceedings which were interrupted in 2015 by their divorce because they were no longer eligible to jointly adopt a child. In 2015 the vote of a new law allowed Icelandic nationality to be granted to the boy.

Following their divorce, foster care services placed the child alternatively with each woman, for a one-year period each time. Since 2019, the child has been living on a full-time basis with one of the two women and her new female partner, while the second woman and her new female partner have been granted equal visitation rights.

In 2016, the Icelandic court held that the biological mother should be declared as the child’s mother, and under the circumstances of the case the authorities were not obliged to recognize the applicants as parents, in accordance with the foreign birth certificate.

The applicants alleged that the authorities’ refusal to register them as parents constituted an interference to their rights. In 2017, they petitioned the ECHR, on the grounds of Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) as well as Article 8 of the European Convention on Human Rights.

The ECHR ruled that despite any biological relationship, the current situation did constitute “a family life” which is adequately protected by the authorities in Iceland, in particular since they granted citizenship to the child. The refusal to recognize the two women as parents is sufficiently founded on domestic law. The court also recalled that adoption would have been possible if they had not divorced.

The European magistrates also declared that in view of the “ethical issues inherent in surrogacy”, it should be kept in mind that individual countries have a “margin of appreciation”.

According to ECHR case-law, the 47 member states of the Council of Europe are not required to recognize a parental relationship between a child and his “intended mother”. Neither does the ECHR impose registering a transcript of the birth certificates of any child born via surrogacy or attributing the title of “mother” to the so-called “intended” mother who did not give birth, since these would be false declarations.

Indeed, the Court declared that: “The best interests of the child are not limited to respecting these aspects of his right to privacy. They include other fundamental elements, such as protection against the risk of abuse inherent in surrogacy, which do not necessarily advocate for recognizing a parental relationship with the ‘intended’ mother .”

However, in countries where this relationship is not recognized, the ECHR calls for considering other solutions such as adoption.

Alliance VITA laments that the ECHR’s position remains grievously ambiguous, since it does not condemn surrogacy as such, but rather, is promulgating a way to by-pass legal adoption. Adoption was instituted to repair harmful situations, whereas surrogacy deliberately violates a child’s rights: prior to conception, it instigates plans to organize how the child’s abandonment will make him eligible to be adopted.

In addition, such post-surrogacy adoption is contrary to the rules of international adoption, since the Hague Convention prohibits pre-birth agreements between birth mother and adoption candidates.

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