European Court of Human Rights delivers its first advisory opinion


Re: 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

The Grand Chamber of the ECtHR has today delivered its first advisory opinion under ECHR, Protocol 16. Protocol 16 came into force in August 2018. It enables the Grand Chamber to deliver a non-binding advisory opinion on request from a referring domestic court on the interpretation or application of the rights in the Convention.

On request from the French Court of Cassation, the Grand Chamber considered human rights issues that arise in surrogacy arrangements. Specifically, the Court was asked whether and in what form the intended mother in a surrogacy arrangement, who was registered abroad as the mother on the child’s birth certificate, should have her relationship with the child recognised in law domestically. The court unanimously decided the following points:

  1. The child’s right to respect for private life within the meaning of Article 8 of the European Convention on Human Rights requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”;
  2. The child’s right to respect for private life does not require such recognition to take the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad; another means, such as adoption of the child by the intended mother, may be used.

Sarah Hannett and Nathan Roberts were involved in this case.