The European Court of Human Rights has been grabbing headlines in France. The Court recently found in favour of France regarding its policy on full face veils (S.A.S v. France), but disallowed passive euthanasia from occurring in a separate, also controversial matter. These are issues of significant human rights gravity; the Court’s findings also captured international attention. Around the same time, the Court issued judgments in two joint Chamber applications, relating to a lesser recognised human rights issue: the practice of international surrogacy, and its impact on the rights of children born this way. Although the Court’s Mennesson v. France and Labassee v. France international surrogacy judgments gained less public interest than the euthanasia and face veil cases, they merit attention, especially given the Court’s focus on the rights of the child.

Lack of registration and recognition: practical and legal difficulties since birth

Increasingly, in countries such as France where all forms of surrogacy are illegal, people are turning to international surrogacy to have children. This takes them to another country to utilise permissive laws allowing children to be born via the involvement of artificial reproductive technologies and surrogate mothers. Often, such surrogacy arrangements are commercial in nature, with money being paid by commissioning parents to a range of potential parties, such as surrogacy brokers, medical professionals, egg or sperm donors and surrogate mothers.

Both the Mennesson and Labassee cases concern children born to surrogate mothers in the United States of America, for French commissioning parents. In both situations, the sperm of the commissioning father and an egg from a donor were used to conceive children. Despite happy, healthy children being born, problems began for them and their commissioning parents soon after their births in the early 2000s. These issues stemmed from France’s refusal to register the children’s births in the French civil register. The refusal of the French government came despite American court orders recognising the commissioning parents as the children’s legal parents. This rendered the children’s legal status highly uncertain; they had no legal child-parent relationship recognised in France, where they have been living since soon after being born. From a practical perspective, the refusal to register their births in France triggered a domino effect of day-to-day difficulties for the children, from a lack of French nationality, to their ability to access social security and education. Both the Mennesson and Labassee couples, and the children they had through international surrogacy, applied to the European Court of Human Rights, alleging violations of their rights to respect for family and private life.

Violation of the child’s right to respect for private life

The Court decided although France had not violated the commissioning parents and children’s right to respect for family life, a violation of the child’s right to respect for private life (Article 8, European Convention for the Protection of Human Rights and Fundamental Freedoms) had occurred. Although France and other parties to the Convention have a wide margin of appreciation (MOA) in relation to matters such as surrogacy, in these situations France had overstepped its MOA by refusing to recognise under French law children who had French biological fathers.

Emphasis on children’s rights

In deciding that the violation of Article 8 occurred only in relation to the children, the Court emphasised the importance of the child’s rights involved. Its decision is primarily based on a view that the refusal to register the children meant the children’s right to preserve their identity was not properly protected (as France is obliged to under Article 8 of the UN Convention on the Rights of the Child (CRC)), and that identity is a key element of the right to respect for family life under the European Convention. In refusing to recognise under French law the biological link between the children and their fathers and preventing the acquisition of French nationality, the children were left in a position that was not in their best interests (as required under Article 3 of the CRC).

Acceptance of judgments

In a move that spares the Mennesson and Labassee children and their parents from further years living under a cloud of uncertainty, the French Government swiftly responded to the judgments by announcing it accepts them and will implement them in law. This will also ameliorate uncertainty for other children and French commissioning parents who have been stuck in similar situations following international surrogacy arrangements. It will be interesting to see how the French Government handles implementation of the judgments in practice, in light of the general prohibitive position on surrogacy in French law and policy.

Wider impact of judgments likely to be felt

Given the effect of the Court’s judgments in other Council of Europe states, those exercising restrictive laws and policies on surrogacy, as France does, will likely pull their practice around birth registration in international surrogacy situations into line with the Mennesson and Labassee decisions. This means the Court’s judgments will impact on many more children than just the three concerned in the Mennesson and Labassee cases. In its first decisions relating to international surrogacy, the European Court of Human Rights has been bold in finding violations of the rights of the child. However, given the continuing growth of international surrogacy and the wide range of human rights challenges it presents, it seems unlikely this will be the last time the Court will engage with the complex child rights issues raised by international surrogacy. Hopefully, the Court will continue to take a child-centred approach, building on the views established in its decisions in Mennesson and Labassee. s