Part III - The EU Family and Family Diversity

9 All Paths Lead to Equality? Same-Sex Couples and Rainbow Families under European Law

Geoffrey Willems

9.1 Introduction

The European landscape remains very fragmented as regards recognition and protection of same-sex couples and rainbow families.¹ As regards couples, only twenty Council of Europe (CoE) States allow same-sex marriages,² whereas nine others recognise and protect same-sex relationships only through registered partnerships.³ In the remaining jurisdictions, same-sex couples have no possibility of formalising their relationship⁴. As regards parent–child relationships, only nine States provide for a ‘true’ same-sex parenthood regime, similar to that applied to different-sex parents,⁵ whereas twenty-one systems allow the establishment of adoptive same-sex parenthood at least in some cases.⁶ In sixteen CoE States, same-sex partners may use assisted reproductive technology (ART) to found a family.⁷ Against this background, this chapter aims to describe and analyse the role of the European Court of Human Rights (ECtHR) and EU law in the developing movement towards full recognition and protection of same-sex couples and rainbow families; it highlights the idea that their different and complementary approaches complement and consolidate each other in a way that appropriately leads to a gradual increase of the requirement for equal treatment of all families, regardless of sexual orientation.

First, Section 9.2 specifically considers the growing recognition and protection of same-sex couples. Significantly, it was only in 2010 that the ECtHR affirmed that same-sex parents enjoy a ‘family life’ within the meaning of Article 8 of the European Convention on Human Rights (ECHR).⁸ The section contemplates a series of questions including the central issue of same-sex marriage, alternative forms of recognition and protection, allocation of couple-related social benefits, family reunification, and cross-border recognition of same-sex marriage.

In Section 9.3, a similar panoramic view of European developments is proposed as regards the progressive recognition and protection of rainbow families. Starting with the fundamental question of same-sex parenthood and same-sex adoption, it will also consider parental responsibility as an alternative way of offering some protection and recognition to same-sex parents and their children and social benefits as a significant dimension of family policy, before – finally – turning to the issues of family reunification and cross-border recognition, which have recently given rise to substantial developments.

As a whole, the developments below emphasise that recognition and protection of same-sex relationships and rainbow families can follow multiple paths and that the ECtHR case law and EU law (including EU legislation and the CJEU case law) are mutually reinforcing for the benefit of the rights of same-sex couples and their children. They also reflect the fact that, while the consecration of the right to same-sex marriage and same-sex parenthood may be considered as the final objective to be achieved, subsidiarity considerations necessarily lead European bodies to favour, at least temporarily, more modest ways.

9.2 Same-Sex Couples

9.2.1 Same-Sex Marriage: A Renewed Interpretation of the Right to Marry?

At the time of the adoption of the ECHR in 1950, marriage was understood in the traditional sense of a union between a man and a woman. Accordingly, Article 12 ECHR unequivocally affirms that ‘men and women of marriageable age have the right to marry and to found a family’.⁹ The ECtHR case law confirmed that this provision was designed to protect the right to marry a person of the opposite gender even if, in Goodwin,¹⁰ the Court precised that the terms man and woman did not necessarily refer to ‘a determination of gender by purely biological criteria’. Similarly, in D and Sweden, the CJEU notoriously considered that ‘according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex’.¹¹ At the time these decisions were issued, the Netherlands was the only jurisdiction allowing same-sex marriages.

The Charter of Fundamental Rights of the EU (the Charter) adopted in 2002¹² suggests a new approach to marriage. Article 9 of the Charter guarantees the right to marry without any reference to gender. The Charter official commentary explains that this reflects a deliberate choice to ‘broaden the scope’ of the right to marriage considering the ‘diversity of domestic regulations on marriage’ and, notably, the evolution in Dutch and Belgian law.¹³ A few years later, in its landmark Schalk and Kopf v Austria decision, the Strasbourg Court strongly relied on the more ‘modern’,¹⁴ or ‘liberal’,¹⁵ wording of Article 9 of the Charter to deliver a ‘renewed’ interpretation of Article 12 ECHR. Based on the developments in EU law, the Court affirmed that it ‘would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex’ and that, as a consequence, ‘it [could not] be said that Article 12 is inapplicable to the applicants’ complaint’.¹⁶

However, both the Commentary and Schalk and Kopf underline that the decision to allow same-sex marriage belongs to national authorities. According to the Explanation relating to the Charter of Fundamental Rights, ‘Article [9] neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex.’¹⁷ Similarly, Schalk and Kopf affirmed that ‘marriage has deep-rooted social and cultural connotations which may differ largely from one society to another’ and that ‘it must not rush to substitute its own judgment in place of that of the national authorities’.¹⁸ The ECtHR decision has been rightly criticised as the Court did not engage in a true proportionality review. More specifically, it did not explain the relative weight of the applicants’ right and the ‘social and cultural connotations’ put forward by the government nor why the latter should trump the former.¹⁹ Having decided that Article 12 did not require State Parties to allow same-sex marriages, the Court also refused to discuss the matter under Articles 8 and 14 as ‘the Convention is to be read as a whole’.²⁰

The subsequent case law of the CJEU and the ECtHR confirms this subsidiary approach leaving the issue of same-sex marriage to the discretion of national authorities. The CJEU has frequently recalled that ‘a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States and EU law does not detract from that competence’.²¹ In the same vein, the ECtHR has repeatedly confirmed that ‘while it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples’ and even specified that ‘it enshrines the traditional concept of marriage as being between a man and a woman’.²² This reiterated reference to the heterosexual nature of marriage might be considered as a step backward in comparison with the more open-ended considerations expressed in Schalk and Kopf.

However, some positive trends may be observed in the recent case law of both courts. In its landmark decision in Coman v Inspectoratul Genral Pentru imigrari,²³ the CJEU delivered a progressive interpretation of the term ‘spouse’. In the Court’s view ‘the term “spouse” within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned’.²⁴ For its part, in Orlandi and Others v Italy, the ECtHR slightly amended its way of referring to State Parties’ discretion regarding the issue of same-sex marriage by affirming that they ‘are still free … to restrict access to marriage to different-sex couples’ (emphasis added).²⁵ This might be considered as a first tangible indication of a possible tightening of European control linked to the evolution of national legislations.²⁶

9.2.2 Transgender Spouses: A Particular Case of Same-Sex Marriage

In recent years, both the ECtHR and the CJEU have had to deal with a particular configuration of the claim for authorising same-sex marriage, arising from situations where individuals married to a different sex spouse have subsequently changed their gender identity.

In the ECtHR case Hämäläinen v Finland,²⁷ the applicant was a trans woman denouncing the fact that she could not be officially registered as a woman without ending her marriage with the woman whom she had married before her transition because, at the time, Finland did not allow same-sex marriage. She could either divorce or consent to her marriage being converted into a registered partnership. In its 2014 decision, the Court considered that such alternative was not in breach of the ECHR, considering the lack of European consensus on allowing same-sex marriage or dealing with the pre-existing marriage of trans persons.²⁸ The Court also endorsed the government’s view that when a marriage was ‘converted’ into a registered partnership ‘the original legal relationship [continued] with only a change of title and minor changes to the content of the relationship’.²⁹ The Court finally considered that ‘the effects of the conversion of the applicant’s marriage into a registered partnership would be minimal or non-existent as far as the applicant’s family life is concerned’³⁰ and that no separate issue arose under Article 12 of the ECHR.³¹ These explanations equating marriage with registered partnership can hardly be reconciled with the Court’s classic rhetoric that ‘marriage confers a special status on those who enter into it’.³² This contradiction arguably makes the whole reasoning unsatisfactory as it biased the proportionality test. Indeed, three dissenting judges found it very problematic to force the applicant to choose between having her gender identity recognised and keeping her civil status. In their opinion, persons in the applicant’s situation should be allowed to remain married after the acknowledgment of the acquired gender. This is one of the very rare occasions where Strasbourg judges expressly took a position in favour of (a very specific type of) same-sex marriage.

A few years later, in M.B. v Secretary of State for Work and Pensions,³³ the CJEU was faced with a similar situation but in the context of Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security.³⁴ The applicant in the main proceedings was a trans woman who was faced with the same cruel alternative as Mrs Hämäläinen, before same-sex marriage was introduced in the UK in 2014. For religious reasons, she decided to remain married with her wife and renounced having her acquired female gender officially registered. However, when she reached the age of sixty at which women were entitled to retirement pension, the applicant applied for such a pension but was refused. Referring, among others, to Maruko³⁵ and Coman³⁶, the Court admitted that ‘EU law does not detract from the competence of the Member States in matters of civil status and legal recognition of the change of a person’s gender’.³⁷ Differently from Hämäläinen, the applicant ‘only’ claimed entitlement to a retirement pension rather than the recognition of gender as such. Accordingly, the Court ruled that Article 4 of Directive 79/7 that prohibits sex-based discrimination precluded national legislation obliging a transgender person to end their marriage to benefit from a retirement pension at the age corresponding to their new identity.

This case demonstrates how, through the specifics of EU law, the ECtHR decision allowing a State to require dissolution of marriage as a condition for gender recognition is somewhat softened by a CJEU decision providing the persons who refuse to end their marriage with at least some of the benefits associated with the unrecognised acquired gender.

9.2.3 Registered Partnerships: Official Recognition as a Basic Right

While the CJEU does not consider itself legitimate to impose on states the creation of a legal status accessible to same-sex couples, the Strasbourg Court has recently confirmed that such a positive obligation exists under Article 8 ECHR.

Already in 2001, the CJEU found in D and Sweden v Council of the European Union, that ‘since 1989 an increasing number of Member States have introduced, alongside marriage, statutory arrangements granting legal recognition to various forms of union between partners of the same sex or of the opposite sex and conferring on such unions certain effects’.³⁸ At the time, the Court considered that this did not imply that registered partners could be covered by the term ‘married official’ used in the Community Staff Regulations.³⁹ Since then, the EU has extended the benefits associated with marriage to registered EU officials as far as they do not have access to marriage.⁴⁰ However, in Parris v Trinity College Dublin,⁴¹ the Court recalled that ‘Member States are … free to provide or not provide … an alternative form of legal recognition of [same-sex relationships], and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect’.⁴² This is an obvious consequence of ‘the lack of EU competence with regard to these matters which … means that the EU cannot legislate in order to require all EU Member States to afford legal recognition to the familial ties among the members of rainbow families in their own territory’.⁴³

The ECtHR, however, has progressively affirmed the right for same-sex couples to an alternative legal status. In Schalk and Kopf, the ECtHR considered that states enjoyed a margin of appreciation ‘in the timing of the introduction of legislative changes’⁴⁴ as well as ‘as regards the exact status conferred by alternative means of recognition’.⁴⁵ As the European consensus on partnerships grew stronger, the Court reconsidered its initial position. In the 2015 Oliari and others v Italy decision,⁴⁶ the ECtHR ruled that the lack of any form of official registration available to same-sex partners was in breach of the right to family life guaranteed by Article 8 ECHR. The Court insisted that ‘same-sex couples … are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship’.⁴⁷ It also underlined that, given the impossibility to marry, same-sex couples had a ‘particular interest’ in an alternative status providing them ‘core rights’ relevant to a couple and endowed with an ‘intrinsic value’ irrespective of its specific legal effects.⁴⁸ In the Court’s view, the Italian Government failed to indicate the ‘community interest’ that would have justified the absence of a statute.⁴⁹ Moreover, the Court considered that while a wide margin of discretion must be recognised as to the ‘exact status’ conferred, such large margin did not apply to the ‘general need’ for legal recognition, especially in a European context where legal recognition of same-sex couples was rapidly gaining ground.⁵⁰

Since Oliari was based on several very specific aspects of the Italian context,⁵¹ it was not clear whether it imposed a positive obligation on all CoE States to create an alternative form of union.⁵² In 2017, the CoE Commissioner for Human Rights, Nils Muižnieks, observed that ‘it is difficult to read the Oliari judgment, and concurring opinion, as anything else than placing a positive obligation on states parties to the ECHR to provide legal recognition to same-sex couples as a way to protect their right to family life’.⁵³ This positive obligation to provide a legal framework was confirmed by the Court in Fedotova and others v Russia, first in a chamber judgment issued on 13 July 2021,⁵⁴ and subsequently in a Grand Chamber decision issued on 17 January 2023.⁵⁵

9.2.4 Social Benefits: Piercing the Veil of Marriage

While lacking the legitimacy to require States to set up registered partnership formulas, the CJEU has proven particularly committed to the defence and development of the rights of registered partners. In several cases, the Court has considered, on the basis of the Employment Equality Directive (Directive 2000/78/EC),⁵⁶ that same-sex couples who could not marry but only enter into a registered partnership should be granted the same social benefits as different-sex spouses. First, in Maruko and Römer,⁵⁷ the Court decided that German Lebenspartners should be able to benefit from a survivor’s or retirement pension under the same conditions as heterosexual spouses. It emphasised, however, that its ruling only applied to partnerships that, as the German status, were reserved for same-sex couples and provided effects very similar to those associated with marriage. However, this approach was expanded, in Hay v Crédit Agricole,⁵⁸ to partnerships available to both different-sex and same-sex couples and less close to marriage regarding legal effects, as the French Pacte civil de solidarité (PACS). In this case, the Court indeed decided that a gay employee entering into a PACS with a person of the same sex should be entitled to the same bonus and leave as those provided to heterosexual persons on the occasion of their marriage. This string of case law constitutes an important step forward for same-sex couples by implying that same-sex registered partners deprived of access to marriage must as a minimum enjoy the same benefits as spouses. Nevertheless, its scope remains limited to situations where same-sex partners have access to at least some form of official registration.

For its part, the ECtHR was prompt to require equal rights for same-sex and different-sex de facto partners, but durably allowed States to favour different-sex spouses over unmarried same-sex partners deprived of access to marriage.

In 2003, the Court decided in Karner⁵⁹ that a surviving same-sex de facto partner should have the right to continue his deceased partner’s tenancy in the same way as a surviving different-sex de facto partner. Considering that the issue fell into the ambit of the protection of ‘home’ under Article 8 ECHR (as the Court did not yet recognise that same-sex couples can enjoy ‘family life’ as such), the Court stated that differences in treatment on the basis of sexual orientation must be justified by ‘particularly serious reasons’⁶⁰ and that the aim of protecting the traditional family was legitimate but ‘rather abstract’ and pursuable through ‘a broad variety of concrete measures’.⁶¹ In the Court’s view, Austria did not demonstrate the necessity to exclude same-sex partners to achieve that aim. This requirement that unmarried couples be treated equally, regardless of their sexual orientation, was confirmed in subsequent decisions, such as Kozak v Poland⁶² and P.B. and J.S. v Austria.⁶³

However, when the ECtHR was faced with the question of whether same-sex partners deprived of the possibility of marrying should be granted the same social benefits as married opposite-sex couples, it was not as bold as the CJEU and refused – for de facto partners as well as for registered partners – to pierce the veil of marriage. In Manenc v France⁶⁴ and Mata Estevez v Spain,⁶⁵ the Court indeed accepted the State’s choice to provide a survivor’s pension only to spouses, even if that implied that same-sex partners were necessarily deprived of such pension as, at the time, it was impossible for them to marry. The Court thus failed to recognise the discrimination based on sexual orientation hiding behind the distinction based on civil status. Despite strong criticism,⁶⁶ this approach has also been applied later in Gas and Dubois, as regards access to adoption.⁶⁷ Fortunately, it seems to have been abandoned in the Taddeucci and McCall⁶⁸ decision relating to family reunification, in which the court decided that same-sex de facto partners who cannot marry should have the same right to family reunification as different-sex spouses.⁶⁹ It shall be seen whether the Court will, in the future, transpose this new reasoning to the issue of social benefits that was at stake in Manenc and Mata Estevez. In such case, the ECtHR case law would provide a useful complement to the Hay case law by expanding its egalitarian dynamic to de facto partners.

It should be mentioned, finally, that, in two decisions issued in 2016, the CJEU as well as the ECtHR still refused to extend spouses’ survivor’s pension rights to same-sex partners, even if the specificity of these cases may limit their significance. In Parris v Trinity College Dublin,⁷⁰ the CJEU decided that the denial of a survivor’s pension to the applicant’s same-sex registered partner on the ground that at the time of his retirement in 2010 such pension was reserved for spouses was not in breach of the provisions of Directive 2000/78/EC, even if at that time same-sex couples could not marry (Ireland allowed same-sex marriage in 2015). In Aldeguer Tomas v Spain,⁷¹ the ECtHR similarly ruled that the denial of a survivor’s pension to a surviving same-sex de facto partner on the ground that at the time of the death in 2002 such pension was reserved for spouses was not in breach of the ECHR, even if at that time same-sex couples could not choose to marry (Spain allowed same-sex marriages in 2005). As mentioned above, the relevance of both cases is arguably limited due to their specific circumstances. Indeed, both Spain and Ireland had in the meantime taken effective steps to expand the right to a survivor’s pension to same-sex partners either through the institution of a civil partnership scheme providing for a survivor’s pension (Ireland)⁷² or through access to marriage and all associated benefits (Spain). Thus, the courts might take a different approach in cases where the State has not taken such steps in view of guaranteeing equality between couples in the enjoyment of social benefits.

9.2.5 Family Reunification: The Strong Protection of the Partners’ Core Right to Simply Be Together

In the spectacular Coman judgment issued on 5 June 2018, the CJEU decided that, to determine the beneficiaries of the right to family reunification of EU citizens, the term ‘spouse’ referred to in Article 2(2)(b) of the 2004/38 directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States⁷³ must be understood as including same-sex spouses as well as different-sex spouses, even if the host state does not allow same-sex marriages. Accordingly, Romania must provide a residence permit to the American spouse with whom a Romanian citizen had been validly married in Brussels where they effectively resided together before moving to Romania. This does not amount to a full recognition of the marriage as it must only be taken into account in the application of EU family reunification law. The judgment is, nevertheless, significant in clearly recognising the right to family reunification for same-sex spouses of EU citizens in all EU Member States. In particular, the Court stressed that the concept of spouse was gender-neutral and had to be interpreted in the light of the aim of directive 2004/38 and of Article 7 of the Charter providing for the right to respect for private and family life. From this perspective, the right of same-sex couples to live together in the Member State of which one of them is a national outweighs the Member States’ desire to protect their ‘public order’ or ‘national identity’. Based on Coman, this right is only recognised with respect to EU citizens who have entered into a same-sex marriage in another Member State. The future will tell whether its scope can be extended to foreigners legally residing in the Union via Directive 2003/86 and to marriages concluded outside the EU.⁷⁴

Quite interestingly, in the context of this contribution, the ECtHR case law provides very significant additions to the protection offered by Coman. While Directive 2004/38 only protects same-sex couples who are married or in a registered partnership equivalent to marriage, the ECtHR decided in Pajic⁷⁵ and Taddeucci and McCall that same-sex de facto partners without access to marriage should benefit from family reunification under the same conditions as different-sex de facto partners and different sex-spouses. In Pajic, the Court applied the established Karner case law on the requirement that same-sex de facto partners be granted the same rights as different-sex de facto partners. Accordingly, the Croatian legislation allowing the reunification of heterosexual de facto partners only was in breach of articles 8 and 14 of the ECHR. Taddeucci goes much further. It departs from the approach taken in Manenc⁷⁶ and Mata Estevez⁷⁷ and considers that, as regards marriage-associated benefits, same-sex de facto partners who do not have access to marriage are not in a situation analogous to that of different-sex de facto partners who have the possibility of contracting marriage. However, the Italian legislation treated them in the same way by denying the right to family reunification to all de facto partners. Such similar treatment of different situations is in breach of the ECHR unless the defending State adduces ‘particularly convincing and weighty reasons’. In the Court’s view, the ‘margin of appreciation enjoyed by the States in protecting the traditional family’ invoked by the government did not meet this standard.⁷⁸

9.2.6 Recognition of Marriages Celebrated Abroad: Partnerships as a Way of Compromise

The Coman judgment cautiously recalls that ‘a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States’⁷⁹ and only affirms ‘an obligation to recognise [same-sex] marriages for the sole purpose of granting a derived right of residence to a third-country national’.⁸⁰ It has been suggested, however, that, at some point, the Coman dynamic may lead to a more general principle of recognition of same-sex marriage celebrated abroad. Indeed, it remains to be seen to what extent it will or will not be ‘sustainable’⁸¹ to confine the recognition of marriage to the sole question of family reunification. It is unclear whether host states, when required to grant residence permits to same-sex spouses, will be able to refuse the latter all the benefits normally deriving from marriage. It is reasonable to think that this first form of ‘targeted recognition’⁸² will give rise to others, for example regarding the social and/or fiscal effects of marriage⁸³ by way of a kind of ‘contagion or percolation’ effect.⁸⁴ Coman might thus be auguring a trend towards a larger or even a full recognition of same-sex marriages across EU Member States: if more and more rights arise from marriages celebrated abroad it may become increasingly difficult to justify a refusal of the title of ‘spouses’. Considering the current position of the CJEU on the Member States’ competence regarding marriage, it is however unlikely that such an obligation of full recognition will be affirmed in the near future.

Recently, the ECtHR arrived at a compromise approach. In Orlandi v Italy,⁸⁵ the Court found that Italy could not, without violating the Convention, deny any form of recognition to foreign same-sex marriages. The applicants were same-sex couples married in Canada, the United States, and the Netherlands complaining that various local administrations in Italy had refused to officially register their marriages. The Court stated that the recognition of a person’s ‘real marital status’ was a matter of personal and social identity and ‘psychological integrity’.⁸⁶ The Court also pointed out that since Schalk and Kopf, the right to marry was applicable to same-sex couples wishing to marry and that it followed that Article 12 ECHR also applied to same-sex couples already married in another legal order.⁸⁷ Nevertheless, states were ‘still free’ to reserve marriage for heterosexuals⁸⁸ and may legitimately aim to prevent their nationals from having recourse abroad to institutions refused in their legal order.⁸⁹ Against this background, the Court noted that the lack of recognition had not deprived the applicants either of the rights they had previously enjoyed in Italy or the rights acquired in the country where they had married.⁹⁰ Moreover, Italy was allowed a comfortable margin of appreciation since, despite the rapid movement in favour of the recognition of same-sex couples in Europe, America, and Australasia,⁹¹ there was no consensus among the states refusing same-sex marriage on the recognition of marriages celebrated abroad.⁹² However, the Court held that domestic authorities, without having to recognise the marriages as such, should have taken them into consideration as civil unions. Indeed, the absence of any recognition and the subsequent legal vacuum disregarded the social reality of the applicants’ situation without compelling justification.⁹³

9.3 Rainbow Families

9.3.1 Same-Sex Parenthood: A Matter of National Identity?

The ECtHR has dealt with the question of same-sex adoption in two significantly different cases. The first case, Gas and Dubois,⁹⁴ concerned two women who lived together in a registered partnership in France. They had travelled to Belgium to conceive a child through assisted reproductive technology (ART) and wanted the child to be adopted in France by the birth mother’s partner. However, such adoption was impossible as intra-family adoption was reserved to spouses, and marriage to different-sex couples only. In the second case, X. and others v Austria,⁹⁵ two women living together in a de facto relationship and raising the child that one of them had conceived during a previous heterosexual relationship wanted the child to be adopted by the mother’s partner. Such adoption was impossible as intra-family adoption was only allowed for different-sex de facto partners but not for same-sex de facto partners.

Beyond the difference regarding the circumstances of the child conception, the main contrast between Gas and Dubois and X. and others was that, in the former, the applicants could not adopt because adoption was reserved for spouses (and marriage was reserved for opposite-sex couples), whereas in the latter, the couple could not adopt because adoption was reserved for opposite-sex couples, either married or not. In the former case, therefore, the difference based on sexual orientation was somehow ‘hidden’ behind a distinction made on the basis of matrimonial status whereas in the latter, it was ‘blatant’, as adoption was available to different-sex de facto partners but not same-sex de facto partners.

In both cases, the Court accepted that there existed a family life between the two women and the child which is protected by Article 8 ECHR. Beyond this, the Court ruled very differently. In Gas and Dubois, the Court considered that the applicants were treated by France exactly like opposite-sex registered partners who could not adopt and could not be compared to opposite-sex spouses as ‘marriage confers a special status on those who enter into it’.⁹⁶ In some sense, the ECtHR refused to see that it was the applicants’ sexual orientation that prevented them from marrying which – in turn – prevented them to proceed to the adoption. The Court disregarded the forbidden discrimination based on sexual orientation poorly concealed behind an admissible distinction on the basis of the status of a couple. Things turned out very differently in X. and others. Since the distinction was clearly based on the applicants’ sexual orientation, the Court referred to Salgueiro Da Silva Mouta⁹⁷ and E.B. v France⁹⁸ to recall that ‘differences based solely on considerations of sexual orientation are unacceptable under the Convention’.⁹⁹ The protection of the traditional family was considered ‘a weighty and legitimate reason which might justify a difference in treatment’ although it was ‘rather abstract’ and could be pursued by ‘a broad variety of concrete measures’.¹⁰⁰ As the government admitted that ‘same-sex couples may be as suited for second-parent adoption as different-sex couples’, the Court concluded that Austria did not adduce ‘particularly strong and convincing reasons’ to justify the disputed distinction and that there had been a breach of Articles 8 and 14 ECHR.¹⁰¹ X. and others undoubtedly constituted a big step forward for lesbian and gay parents but its importance is undermined by the circular reasoning relied on in Gas and Dubois by which the right to adoption is only guaranteed where de facto partners may adopt.

Fortunately, Taddeucci and McCall dismissed the Gas and Dubois approach and logically considered that the ‘specificity of marriage’ argument cannot be used against those who cannot marry,¹⁰². One can thus hope that this updated reasoning will be applied in future same-sex adoption cases and that the ECtHR will accordingly affirm an explicit right to same-sex adoption based on the idea put forward in X. and others that ‘same-sex couples [are] as suited for … adoption as different-sex couples’.¹⁰³

While favourable developments may thus be expected as regards adoption,¹⁰⁴ the ECtHR may remain more reluctant to affirm the right to ‘direct’ (as opposed to ‘adoptive’) same-sex parenthood established through a legal presumption or acknowledgement of ‘co-maternity’ or ‘co-paternity’. To our knowledge, the ECtHR has delivered only one decision on the matter – Boeckel and Gessner-Boeckel.¹⁰⁵ In this case, two German women were living together in a Lebenspartnerschaft and one of them gave birth to a son. Two years after the birth, the German court allowed a second parent adoption, by the mother’s life partner. The applicants subsequently requested the court to change the child’s birth certificate, as, in their view, the presumption automatically designating the mother’s husband as the child’s legal father should have been applied mutatis mutandis in their situation. The ECtHR found, however, that same-sex registered partners and opposite-sex spouses were not in a comparable situation in this respect. According to the Court, the presumption was based on the idea that ‘the man who was married to the child’s mother at the time of birth was indeed the child’s biological father … [even if] this legal presumption might not always reflect the true descent’ whereas, in contrast, ‘in case one partner of a same-sex partnership gives birth to a child, it can be ruled out on biological grounds that the child descended from the other partner’.¹⁰⁶

In the very recent V.M.A. v Stolichna obshtina case,¹⁰⁷ the CJEU similarly emphasised that ‘a person’s status, which is relevant to the rules on marriage and parentage, is a matter that falls within the competence of the Member States’ and that they ‘are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex’.¹⁰⁸ In her Opinion, Advocate General Kokott more specifically noted that among the Member States that allow same-sex marriage, ‘only some provide for the ‘automatic’ parenthood of the wife of the biological mother of a child’¹⁰⁹ and that ‘the rules on parentage determine the family relationships which are at the heart of family law’ and ‘represent the essence of the conception which the [State] is seeking to protect as its national identity’.¹¹⁰

Currently, another case concerning the issue of same-sex parenthood, R.F. and others v Germany,¹¹¹ is pending before the ECtHR. Differently from the Boeckel case, here one of the women gave birth while the other provided the eggs. Accordingly, both women may claim to be – in some sense – the child’s biological mother. In light of the recent confirmation by the CJEU that the recognition of same-sex parenthood is a matter that should be left to the states, it remains to be seen whether this double biological connection with the child will lead the court to take a different approach than the one taken in Boeckel and rule in favour of the applicants.

9.3.2 Assisted Reproductive Technology: The Cross-Border Dimension

The ECtHR has never had the opportunity to address clearly the question of whether same-sex couples could have an ECHR-guaranteed right to found a family via ART techniques. In Gas and Dubois, the applicants had travelled to Belgium for insemination but the Court was not seized of the question of access to ART but only of the subsequent issue of adoption. The Court nevertheless noted that ‘while French law provides that … insemination is available only to heterosexual couples it also states that it is to be made available for therapeutic purposes only’. From this therapeutic perspective, the applicants’ situation cannot be compared to that of infertile heterosexual couples and they cannot be said to be discriminated against.¹¹² Gas and Dubois was followed by another French application – Charron and Merle-Montet¹¹³ – to the ECtHR. The application concerned the fact that lesbian couples had no access to insemination in France but was considered inadmissible as the applicant had not exhausted the domestic remedies.¹¹⁴ In any case, it must be kept in mind that the ECtHR has proven very reluctant to impose any obligation on State Parties as regards medically assisted procreation (MAP) even in situations involving opposite-sex couples.¹¹⁵ In the foreseeable future, the Court is therefore very unlikely to take serious steps in favour of same-sex partners who want to become parents through ART.

Due to the fact that ART constitutes medical services under EU law these are to be considered ‘services’ within the meaning of Article 57 TFEU insofar as they are carried out legally and in return for payment, and ‘health care’ within the meaning of directive 2011/24/EU on patient mobility.¹¹⁶ EU law thus generally allows individuals to move within the Union to benefit from ART techniques, even when these techniques are prohibited in their State of origin. It seems that a ‘considerable flow of patients’ crosses borders between European states for reproductive purpose, either because of ‘legal restrictions based on prohibition of the technique per se, or because of inaccessibility due to the characteristics of the patients (like age, sexual orientation or civil status)’.¹¹⁷

However, the freedom to provide services protected by the TFEU is not absolute and states may try to prevent their nationals from crossing borders to resort to domestically prohibited techniques.¹¹⁸ Directive 2011/24/EU indeed stipulates that none of its provisions ‘should be interpreted in such a way as to undermine the fundamental ethical choices of Member States’.¹¹⁹ In this respect, it is worth mentioning that in her Opinion in V.M.A. v Stolichna obshtina, Advocate General Kokott included human reproduction among ‘the fundamental institutions of family law’. In her view, ‘national rules governing marriage (or divorce) and parentage (or even reproduction) define the family relationships which are at the heart of this field’.¹²⁰

Similarly, in the Mennesson case, the ECtHR decided that a state could legitimately seek ‘to deter its nationals from having recourse to methods of assisted reproduction outside the national territory that are prohibited on its own territory’.¹²¹ On a different note, however, it must be kept in mind that in S.H. and others v Austria, the Court explicitly noted that restrictions to access to ART were ‘more acceptable’ if nationals could easily seek the desired treatments abroad.¹²² There may be a form of paradox or at least tension here, since, while states may thus seek to discourage ‘reproductive tourism’, the Court sometimes considers state bans to be less problematic when the denied services can be accessed in another country.

9.3.3 Shared Parental Responsibility and Contacts: A Favourable, Yet Timid, Evolution

Currently, the EU has no competence to regulate adoption and parenthood, and the ECtHR is not (yet) ready to explicitly affirm the right to same-sex adoption or a fortiori a hypothetical right to same-sex parenthood. In this situation, European judges may try to put forward the right for same-sex parents and their children to enjoy at least some ‘core’ rights allowing the flourishing of the adult–child relationship. To our knowledge, only the ECtHR has been asked to rule on the critical issues of parental responsibility and contacts in the specific context of rainbow families. Unfortunately, its decisions on the matter did not further much the cause of legal recognition and protection of the links established in such families.

In 2018, in Bonnaud and Lecoq,¹²³ the ECtHR decided that the impossibility for a couple of women to share parental responsibility over the two children that they were raising together was not contrary to the ECHR. Each of them had become mother of one of the children through ART in Belgium and they wished to exercise joint parental authority over both of them using a mutual ‘delegation of parental authority’ which under French law is a general possibility for (a) parent(s) to share parental responsibility with a third party. However, the domestic courts found that, as both women were already perceived as the children’s mothers by family and friends and as they did not report any particular difficulties, the necessity of a delegation had not been demonstrated. The ECtHR endorsed this explanation observing that the refusal to grant the delegation was based on the factual circumstances of the case¹²⁴ and that the assessment by the French courts did not reveal any difference in treatment based on sexual orientation.¹²⁵

In 2020, in Honner,¹²⁶ the Court similarly considered that the denial of a right to contact the mother’s ex-partner who had assumed the role of a second mother for years was not in breach of the Convention. Here, again, the couple had travelled to a Belgian fertility centre, and the woman who had given birth had appointed her partner as the child’s testamentary guardian and had also largely entrusted her with the child’s daily upbringing. The two women had entered into a civil partnership in 2009 but separated in 2012, and the child’s mother had subsequently refused contacts between the child and her ex-partner who had then applied for contact as a person having established lasting emotional ties with the child. The national judge, however, refused to order such right to contact as, due to the very sharp deterioration in the relationship between the two women, contacts did not appear to be in the child’s best interest. The ECtHR ruled in favour of the defending State by considering that French courts had delivered a ‘carefully reasoned’ decision, taking into consideration all the relevant facts and prioritising the prevailing interest of the child who was in a traumatic and guilt-inducing situation.

One may consider that Bonnaud and Lecoq as well as Honner did not give due consideration to the fact that the applicants were not ordinary ‘third parties’ but the child’s co-mothers. There had been no possibility of officialising the relationship between the children and their mother’s partner despite the joint parental project, as, at the time, they could not have recourse to intra-family adoption and no alternative parenting status had been designed to accommodate the specific needs of rainbow families. However, by applying the general provisions of the Civil Code to the applicants as if they were any ‘third party’ in relation to their children and eluding the fact that they were actually the children’s second parents, the French decisions may certainly be considered as treating obviously different situations in a similar manner which, arguably, the Court should have considered contrary to Article 14 ECHR.¹²⁷

Most recently, the ECtHR dealt with another French case, Callamand,¹²⁸ which concerned the refusal of post-separation contacts between a child and her mother’s ex-wife. The Court decided that in that particular situation, the French courts had not given sufficient consideration to the co-mother’s right to respect for her family life and had accordingly violated Article 8 ECHR. Specifically, the Court noted that ‘the applicant sought only the opportunity to continue to see, from time to time, a child in respect of whom she had acted as a co-parent for more than two years since her birth’.¹²⁹ Unlike in Honner, the Court considered that ‘it [was] not sufficiently clear from the reasoning of the domestic courts how they proceeded to investigate whether a fair balance was maintained between potentially conflicting interests’¹³⁰ and that ‘the Court of Appeal did not show that the fact that [the child] was having difficulties was in consequence of his meetings with [the applicant]’.¹³¹ Thus, while not formally departing from the Honner approach, Callamand may be considered a timid evolution towards an increased ECHR protection provided to social and affective ties established in the context of rainbow families.

9.3.4 Social Benefits: The Work–Life Balance of Same-Sex Parents

As regards parenting-associated social benefits, so far, the ECtHR does not appear very inclined to require states to treat same-sex parents similarly to different sex-parents, which may seem consistent with the approach taken in Bonnaud and Honner but which may change in the post-Callamand context.

Indeed, in Hallier and others,¹³² the Court considered that refusing a co-mother the benefit of a paternity leave was not in breach of the Convention. The Court did consider that a lesbian co-mother ‘is in a situation comparable to that of a biological father in a heterosexual couple’; however, it noted that legislation on paternity leave ‘was intended to strengthen fathers’ responsibility for their children’s upbringing … and to bring about a change in the sharing of domestic tasks between men and women’.¹³³ According to the Court, granting fathers eleven days of paid leave was proportionate to such a legitimate aim. Moreover, the Court said that the differentiated treatment was not based on sex or sexual orientation but on the existence or absence of a biological link with the child. Finally, the Strasbourg judges considered that ‘making the benefit of this leave dependent on a parenthood link with the child could, at the time in question, fall within the margin of appreciation granted to the State in this area’.¹³⁴

The Court’s reasoning may be considered unsatisfying. First, the aim of strengthening fathers’ responsibility would not be undermined in any way by providing the parental leave also to co-mothers. Then, the justification based on biological links may be considered weak as some legal fathers are not their child’s biological fathers. Conversely, there are situations where a co-mother is biologically related to her partner’s child, such as in the circumstances of R.F. and others. Finally, as concerns the distinction based on legal parenthood as such, the reasoning may be considered flawed as it neglects the fact that, at the time, it was impossible for the applicants to have such tie legally established because of their sexual orientation. Once again, this amounts to denying a specific benefit to same-sex couples blaming them for not having established a legal relationship that had been impossible for them to establish.

This decision of the ECtHR seems to be based on broadly the same premises as the EU directive 2019/1158 on work–life balance for parents and carers.¹³⁵ Indeed, whereas the directive officially ‘acknowledges the existence of non-traditional family types’,¹³⁶ it does not include any provision referring directly to same-sex parents or prohibiting discrimination based on sexual orientation. There might thus be a ‘heteronormative bias’ here, in the way in which families are perceived and described.¹³⁷ As a consequence, directive 2019/1158 may be considered as not paying sufficient attention to the need of families that do not reflect traditional gender norms, such as rainbow families.¹³⁸ It shall be seen whether the CJEU might be able to increase inclusiveness in EU parental leave law through interpretation, notably in the light of the Charter provisions.

9.3.5 Family Reunification: The Landmark V.M.A. v Stolichna Obshtina Case

One important step in favour of rainbow families was taken by the CJEU in the V.M.A. v Stolichna obshtina case.¹³⁹ The applicant in the main proceedings was a Bulgarian woman married to a British woman. They had resided together in Spain since 2015 and had a daughter in 2019. The Spanish birth certificate mentioned the applicant’s wife as ‘mother’ and the applicant as ‘mother A’. In 2020, the couple asked the Bulgarian administration to issue a Bulgarian birth certificate to the child but their request was rejected based on the fact that Bulgarian birth certificates only have one box for ‘mother’ and one for ‘father’. Only one name may be entered in each box.

The Court noted that despite not recognising the applicant’s parenthood, national courts had found that the child was to be considered a Bulgarian national. While this position could seem inconsistent, it implied that as an EU citizen, the child was entitled to identity documents recognising her parents as established in another member state which allowed her to be accompanied by them when exercising her freedom of movement.¹⁴⁰ As the national position allowing nationality while refusing parenthood felt somewhat unconvincing (the latter normally flowing from the former), the CJEU also considered the alternate hypothesis where the child would not be granted Bulgarian nationality based on its Coman reasoning. Just as the term ‘spouse’ in Directive 2004/38 must be interpreted as to include same-sex spouses legally married in a Member State, the term ‘descendant’ in the same Directive must be read as applying to children whose relationship with their same-sex parents has been validly established somewhere in the EU.¹⁴¹ The CJEU specifically added, exactly as in Coman, that ‘the obligation … to recognise the parent-child relationship between [a child] and [their same-sex parents] in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto, does not undermine the national identity or pose a threat to the public policy of that Member State’.¹⁴²

While such consecration of the right to free movement of rainbow families is undeniably a very significant achievement, the scope of V.M.A. v Stolichna obshtina is limited.¹⁴³ On the one hand, it only covers birth certificates issued by a Member State and does not apply to same-sex legal parenthood established in a third country.¹⁴⁴ On the other hand, the obligation of recognition is limited to the exercise of the right to free movement and does not involve the other legal effects of legal parenthood.

9.3.6 Recognition of Parenthood Established Abroad: Towards an EU Regulation?

V.M.A. v Stolichna obshtina has set up a very important milestone but family reunification as such is not sufficient to guarantee the real freedom of movement of mobile rainbow families. Unless the ties of legal parenthood are fully or entirely recognised, the latter will still be confronted with awkward and complicated situations where, while being allowed to settle together, rainbow families will not be considered as legal families for most aspects of parent–child relationships such as parental responsibility, social benefits, tax law, inheritance, and so on. Also, it is not certain whether and how states that are obliged to welcome same-sex parents’ families in their legal order may progressively be inclined or constrained – through the operation of a ‘contagion or percolation’ dynamic – to grant them the full range of rights and duties normally arising from legal parenthood.

Notably, in her 2020 State of the Union address,¹⁴⁵ the president of the Commission Ursula von der Leyen expressly declared that ‘to make sure that we support the whole community, the Commission will soon put forward a strategy to strengthen LGBTQI rights’ and that, as a part of this, she would ‘push for mutual recognition of family relations in the EU’ because ‘if you are parent in one country, you are parent in every country’. In its subsequent ‘Union of Equality: LGBTIQ Equality Strategy 2020–2025′ (LGBTIQ Equality Strategy), the Commission effectively committed to ‘[proposing] a horizontal legislative initiative on the mutual recognition of parenthood between Member States’.¹⁴⁶ After an impact assessment,¹⁴⁷ a formal proposal for a Council regulation on the cross-border recognition of parenthood was published in December 2022.¹⁴⁸

As regards the issue of the recognition of family ties established abroad, some important developments recently occurred in the case law of the ECtHR related to the specific context of international surrogacy. In D.B. and others v Switzerland,¹⁴⁹ the Court decided that two men who became parents through surrogacy in California, one of them providing his sperm for the conception, should be able to have their legal parenthood established in the United States recognised in Switzerland. The Court thus expanded its Mennesson approach to same-sex parents, explicitly considering that the fact that the applicants are a same-sex couple does not justify departing from the principles identified in the French case. Another, currently pending ECtHR case A.D.-K. v Poland¹⁵⁰ also relates to the recognition of same-sex parenthood. The applicants are two women who became parents together in the UK and were registered there as the child’s ‘mother’ and ‘parent’ on the British birth certificate. They complain that the Polish authorities refused to recognise their daughter’s legal parenthood as established in the UK, insisting that the decision had an impact not only on the child’s citizenship (as one of her co-mothers is Polish) but also on her inheritance rights and, more generally, on ‘their right to be considered parents’. The facts are thus very similar to those at issue in V.M.A. and, in the light of the decision in D.B. and others, it seems likely that the court will require that parentage be recognised, except if the difference between the Swiss and the Polish contexts is considered sufficient to justify a different approach. If this is confirmed, the ECtHR will deserve to be credited for a really significant contribution to strengthening the position of international rainbow families.

9.4 Conclusion

The above developments show a fairly strong convergence of the two European legal orders as regards the rights of same-sex couples and rainbow families.

In the first place, the European (supranational) Courts currently refrain from forcing states to abandon their traditional conception of the fundamental institutions of family law – marriage and parentage. There is a clear link between the ‘deep-rooted social and cultural connotations’ of Schalk and Kopf, and the idea expressed by the Advocate General in V.M.A. that the rules on parentage represent ‘the essence of the conception which the State is seeking to protect as its national identity’. The common underlying idea is that marriage and parentage are so deeply connected to the States’ social and cultural identity that it is not (yet) possible to impose a distinct, uniform, and inclusive European approach that would guarantee the right to marry and to become a parent irrespective of sexual orientation.

It can be considered that, as a compensation for not affirming the right to same-sex marriage or same-sex parenthood, the ECtHR tends to require that family relationships be recognised and protected in alternative ways. The Fedotova Grand Chamber decision puts it very clearly as regards couple relationships by requiring States to provide at least the option of registered partnership. Things are less clear as regards parent–child relationships, but Callamand may be cautiously considered as a step towards a similar requirement to offer minimal recognition and protection to parenting relationships in rainbow families through parental responsibility and contact rights. For its part, the CJEU contributes to the advancement of equality by requiring a non-discriminatory allocation of family-related social benefits. By affirming that registered same-sex partners should enjoy the same social benefits as heterosexual spouses, the Hay decision provides a significant addition to the right to a partnership affirmed by the ECtHR. Hopefully, the Court will adopt a similar approach when applying directive 2019/1158 on work–life balance and make sure that same-sex parents are not discriminated against in the allocation of parenting-related benefits.

Arguably, the most significant developments in recent years have occurred in relation to mobile families. In this respect, the Coman and V.M.A. decisions clearly affirm an obligation of European States to guarantee the right to family reunification in a way that affirms the right to be together as the core of the right to family life. Yet the recent decisions of the ECtHR go even further as, on the one hand, Orlandi requires States to recognise same-sex marriages celebrated abroad as at least a registered partnership and, on the other hand, D.B. v Switzerland requires the recognition of same-sex parenthood established abroad at least when one of the co-parents is biologically linked to the child.

Thus, while being careful not to directly confront the most conservative states by forcing the recognition of same-sex couples and rainbow families through marriage and parentage, the ECtHR and the CJEU use, in a complementary way, different strategies to strengthen their legal position. Taken together, developments regarding registered partnerships, parental responsibility and contacts, social benefits, family reunification, and cross-border recognition lead to the conclusion that the current European recognition and protection of same-sex families is admittedly incomplete or imperfect, but quite significant, especially considering the still fragmented European context. At some point in the future, new families’ increased visibility and legitimacy should lead to the ultimate step of imposing a European and inclusive understanding of marriage and parenthood.

10 Surrogacy before European Courts The Gender of Legal Fictions

Alice Margaria ^*

10.1 Introduction

In Europe, the landscape of surrogacy continues to be quite diverse. Whilst the practice is allowed in a few jurisdictions, the majority of legal frameworks prohibit it or leave it unregulated.¹ Regardless of the legal approach taken, surrogacy has always raised a multiplicity of legal questions, some of which have reached European supra-national courts. The European Court of Human Rights (ECtHR) has been mostly concerned with the determination of legal parenthood, in particular the recognition of the parent–child relationship between children born from surrogacy abroad and their intended parents. The Court of Justice of the European Union (CJEU) has so far dealt with the issue of maternity leave for intended mothers of children born from surrogacy. The different thematic focus – and the significantly more frequent interventions by the ECtHR – is explained by the European Union’s (EU) lack of competence in substantive family law issues, which limits its contact with surrogacy to questions of equality and employment rights.² In spite of addressing different questions, both European courts ground their construction of legal motherhood in gestation and birth, thus failing to reflect the lived realities of those involved in surrogacy arrangements and placing intended mothers in a precarious position, especially compared to intended fathers. This differential treatment, I argue in this chapter, reveals the gender of legal fictions in the determination of legal parenthood in Europe.³

The analysis is divided into three main sections. Sections 10.2 and 10.3 explore the CJEU and ECtHR case law on surrogacy with the aim of reconstructing the emerging understandings of motherhood and fatherhood and, more broadly, the gendered assumptions underlying the attribution of legal parenthood and related parental rights. It will be shown that one of the assumptions which remains central and uncontested in both systems is the conflation of gestation and motherhood.

This will give rise to reflections on the broader issue of legal fictions in the attribution of legal parenthood in Section 10.4 of the chapter. In Western jurisdictions, legal fictions have played a central role in the legal architecture of parenthood. Whilst the attribution of motherhood follows the mater semper certa est rule, according to which the person who gives birth is the child’s mother, the marital presumption provides that the father of a child born during marriage is the husband of the child’s mother. Section 10.4 sheds light on the gendered lives of these rules and foregrounds the immutability of the mater semper certa est rule in contrast with the adoption of various context-specific tests to determine legal fatherhood following social and technological developments. In the context of surrogacy, the gendered lives of these presumptions help explain the imbalance between intended mothers and intended fathers, and the different ways in which their claims for legal parenthood are handled by courts in general. Whilst genetics suffice for intended fathers to establish legal fatherhood, birth-givers are bound to legal motherhood regardless of the circumstances, even if someone else actually mothers or parents the child.

10.2 Surrogacy before the CJEU

In 2014, the CJEU was confronted with two preliminary references that raised the question of whether a woman is entitled to maternity leave with respect to her child born from a surrogate. Whilst surrogacy as such does not fall within the competence of the EU, maternity leave is regulated by EU law. In CD v ST, the intended mother (CD) had a child conceived with her partner’s sperm and the eggs of the surrogate.⁴ CD breastfed the newborn until the age of three months, and both she and her partner were granted parental responsibility. Before the child was born, CD had unsuccessfully applied for paid time off for surrogacy under her employer’s adoption policy. Subsequent to the birth, her employer eventually granted CD paid leave on a discretionary basis. The Employment Tribunal in Newcastle upon Tyne (UK) referred the issue of whether the refusal to grant paid leave equivalent to adoption and maternity leave to an intended mother was contrary to the Pregnant Workers Directive,⁵ and constituted discrimination on the grounds of sex, contrary to the Equality Treatment Directive.⁶ The second case, Z v Government Department and the Board of Management of a Community School, stems from similar facts.⁷ Before the child was born, Z, the intended genetic mother, applied to her employer for leave equivalent to adoption leave.⁸ The employer rejected her request but offered unpaid leave to attend the child’s birth in California, and statutory parental leave for the period subsequent to birth. Just like in CD, the Irish Equality Tribunal asked the CJEU whether a failure to provide for surrogacy leave was a breach of EU gender equality law.⁹

Interestingly, the CJEU did not join the two preliminary references, and Advocate General Kokott in CD and Advocate General Wahl in Z took quite different approaches. Following a ‘contextual and teleological’ approach to interpretation, Advocate General Kokott argued in favour of an EU right to maternity leave for intended mothers.¹⁰ She explained that, just like a woman who has given birth to her child, ‘an intended mother has in her care an infant for whose best interests she is responsible’.¹¹ Precisely because she had not been pregnant herself, the intended mother is confronted with ‘the challenge of bonding with that child, integrating it into the family and adjusting to her role as mother’.¹² Advocate General Kokott, therefore, concluded that in light of recent medical advances, the personal scope of the Pregnant Workers Directive is to be understood in ‘functional rather than monistic biological terms’.¹³ Advocate General Wahl, on the contrary, argued in Z that the protection of the special relationship between mother and child was to be interpreted ‘as a logical corollary of childbirth (and breastfeeding)’.¹⁴ Broadening the personal scope of the Directive would result in a contradictory situation whereby an employed intended mother would be entitled to paid (maternity) leave, but an adoptive mother or a father would not have such a right.¹⁵

The Grand Chamber held that, under EU law, maternity leave presupposes that the worker was pregnant and gave birth.¹⁶ The fact that, in the first case, CD was breastfeeding the child did not make any difference.¹⁷ The CJEU clarified the twofold goal of maternity leave: the protection of the health of the mother ‘in the especially vulnerable situation arising from her pregnancy’;¹⁸ and, the protection of the special relationship between a woman and her child, which applied ‘only [in] the period after pregnancy and childbirth’.¹⁹ It was therefore concluded that the Member States are not required to extend maternity leave to intended mothers but may, of course, adopt more favourable provisions.²⁰ Also, according to the CJEU, the exclusion of intended mothers from maternity leave did not constitute direct or indirect discrimination on the ground of sex because an intended father would be treated in the same way, and there was no evidence that the refusal at stake placed working women in a disadvantageous position compared to working men.²¹

The decisions in CD and Z lay bare the decisive role given to gestation and birth in defining what is meant by ‘being a mother’ under EU law, and the resulting gap between the realities of contemporary families and EU law. As observed by Caracciolo di Torella and Foubert, the EU framework on the protection of maternity at work is firmly grounded in the assumption that the person who is pregnant and gives birth is the child’s legal mother, in line with the mater semper certa est rule.²² The CJEU rulings in CD and Z are cases in point: the Pregnant Workers Directive, as interpreted by the Grand Chamber, incorporates a gestational understanding of motherhood, whereby pregnancy is the trigger for its application. Whilst it is true that the EU has over the years succeeded in developing a framework where pregnancy and maternity in the workplace are protected, this framework remains nonetheless ill-equipped to deal with the diversity of contemporary families, including those created through surrogacy.

CD and Z also reveal ‘the gendered character’ of EU conceptions of parenthood.²³ Through these decisions, the CJEU supports and ‘further entrenches the protection of the special relationship between a woman and her child … as a natural addendum of the Directive’s health and safety protection’.²⁴ By excluding intended mothers from the personal scope of the Directive, the CJEU reserves this protection to women and newborns who have a gestational link, thus ignoring the experiences of CD and Z as actual carers of their children. On this point, the Opinion of Advocate General Wahl takes an important step forward. In spite of concluding against a broad interpretation of the personal scope, he suggested that the ‘special relationship’ objective should be given ‘independent significance’, namely detached from pregnancy and birth.²⁵ In his words, ‘the scope of protection afforded by Article 8 of Directive 92/85 could not … be meaningfully limited only to women who have given birth, but would necessarily also cover adoptive mothers or indeed, any other parent who takes full care of his or her new-born child’.²⁶ In spite of supporting an undesirable practical outcome, the reasoning offered by Advocate General Wahl has the potential to challenge the gendered assumption that gestational mothers, and mothers more broadly, always have a stronger connection with the child and should therefore take more leave to look after their newborns than fathers. One could therefore argue that Advocate General Wahl subtly calls for a ‘commitment to the social value of parenthood’²⁷ and suggests care as the ground for attributing paid leave from work. The CJEU, on the contrary, remains anchored to the mater semper certa est rule and, accordingly, continues to treat pregnancy and maternity as a continuum.

The next section argues that a gestational understanding of motherhood runs also through the case law of the ECtHR. In that context, where the case law offers more insight into the Court’s reasoning, the precarious position of intended mothers is closely connected to – and actually a consequence of – a genetic understanding of fatherhood.

10.3 Surrogacy before the ECtHR

10.3.1 The Relevance of Genetics

Transnational surrogacy has become a matter of frequent discussion at the ECtHR. Widespread legal bans at the domestic level have led some intended parents to resort to surrogacy abroad, with the aim of benefitting from more permissive legal frameworks and intention-based regulations of legal parenthood. Even in cases of transnational surrogacy, however, the journey to fulfil one’s wish to have a child often comes with significant challenges. Regarding legal challenges, it is not uncommon for intended/social parents and their children born from surrogacy to encounter difficulties when demanding legal recognition of their parent–child relationships, lawfully formed abroad, in their country of residence. The ECtHR has been an important agent in strengthening the legal protection of family relationships created through transnational surrogacy: through its rapidly growing case law, this Court has created space for the experiences of (some of) these families within domestic legal frameworks which prohibit surrogacy arrangements.

The trajectories along which this process has developed have benefitted some intended parents more than others. One of these trajectories lies in the relevance attributed to genetics, which can be traced back to the ECtHR decision in the early case of Mennesson v France.²⁸ This case was the first to bring the issue of recognition of foreign birth certificates following transnational surrogacy to the ECtHR’s table. The couple’s twins, who were conceived using the gametes of the intended father and donor eggs, were born from a surrogate in California. French authorities had refused to transcribe the Californian birth certificates indicating Mr and Mrs Mennesson (the intended parents) as parents of their daughters. They reasoned that doing so would be against public order due to the domestic prohibition of surrogacy.

In the view of the ECtHR, the position of legal uncertainty in which the children were placed as a consequence of non-recognition of their family ties compromised their ability to establish ‘details of their identity as individual human beings, which include[d] the legal parent–child relationship’.²⁹ This assumed ‘special’ relevance, the Court emphasised, because one of the intended parents was also genetically linked to the children, and genetic parentage constitutes an ‘importan[t] … component of identity’.³⁰ Non-recognition was therefore considered to breach the children’s right to respect for private life. In contrast, no violation of the applicants’ right to respect for their family life was found on the ground that they could settle in France and enjoy their daily family life ‘in conditions broadly comparable to those of other families’ with no risk of being separated, even in the absence of legal recognition.³¹ As explained below, the ECtHR’s emphasis on genetics ended up marginalising the experience and claim of Mrs Mennesson, even if she had been involved in the surrogacy arrangement and later in the children’s upbringing as much as her husband, thus legitimising an imbalance between intended fathers and intended mothers.

Even if the intended parents’ rights under Article 8 ECHR were not formally considered to be breached, the relevance attributed to genetics in finding a violation of the child’s right to respect for private life eventually had positive consequences for the legal position of Mr Mennesson. At the domestic level, the French Court of Cassation tempered its stance, allowing for the registration of the intended genetic father in accordance with the foreign birth certificate, unless evidence indicated that the document was irregular, falsified, or that the facts did not reflect biological reality.³² As concerns the intended mother, the Court of Cassation reiterated its commitment to the mater semper certa est rule and, in 2017, clarified that if the mother was married to the father, she could nonetheless seek to adopt the child, provided that the statutory requirements were met and adoption was in the child’s best interests.³³

The issue of legal recognition of intended motherhood, in particular of Mrs Mennesson, came under the spotlight again in 2019, when the Grand Chamber issued its first advisory opinion under Protocol 16 upon a request by the French Court of Cassation.³⁴ The Grand Chamber clarified that domestic law is required to provide a possibility of recognition to the relationship lawfully established abroad between the child and the intended mother, who is designated as the legal mother on the birth certificate. The principle of the child’s best interests was a decisive factor in reaching this conclusion. The Grand Chamber noted that the lack of legal recognition of the intended mother–child relationship had negative consequences on several aspects of the child’s respect for private life, ranging from nationality and inheritance rights to the risk of the relationship being discontinued in case of parental separation or the father’s death.³⁵ In the Grand Chamber’s view, the child’s best interests also entailed ‘the legal identification of the persons responsible for raising him or her, meeting his or her needs and ensuring his or her welfare, as well as the possibility for the child to live and develop in a stable environment’.³⁶ Hence, the general and absolute impossibility of obtaining legal recognition of the intended mother–child relationship was incompatible with the child’s best interests, which required at a minimum that each situation be examined on a case-by-case basis.³⁷

As concerns the choice of the means of recognition, the ECtHR held that states are not obliged to register the details of the foreign birth certificate nor to recognise the relationship between a child and their intended mother ab initio.³⁸ Considering the child’s best interests as paramount, recognition has to be possible ‘at the latest when [the relationship between a child and their intended mother] has become a practical reality’.³⁹ It follows that, depending on the circumstances of the specific case, adoption may offer a valid legal avenue for recognising the relationship between the child and the intended mother, as long as ‘the procedure enables for a decision to be taken rapidly’.⁴⁰

After reading the Advisory Opinion, one would expect intended fathers and intended mothers to be on a more equal footing when seeking recognition of their parent–child relationships following transnational surrogacy – especially because Mrs Mennesson was considered to deserve recognition in spite of having no genetic link with her children. Subsequent case law, however, suggests the opposite. In fact, whilst the Advisory Opinion has served to extend legal recognition to, for instance, the intended non-genetic father in a registered partnership with the intended genetic father,⁴¹ the original imbalance between intended mothers and intended fathers in different-sex couples has been left untouched.

10.3.2 The Gendered Effects of Genetics

This section takes the above argument on the relevance of genetics further, and traces the gendered effects of genetics with respect to the determination of legal motherhood and legal fatherhood following transnational surrogacy. To do so, it focuses on the ECtHR decision in the case of D. v France, where – in contrast to previous cases – both intended parents were genetically linked to their child born from surrogacy in Ukraine.⁴² The foreign birth certificate indicated the intended parents as legal parents, with no mention of the surrogate. Whilst French authorities registered the legal relationship between the child and the intended father, the mother was offered the possibility to apply for step-child adoption.

The applicants argued that the refusal to register the Ukrainian birth certificate with respect to the relationship between the intended mother and the child breached the child’s right to respect for private life, and amounted to discrimination on the grounds of birth contrary to Article 14.⁴³ No violation was found. Given the likelihood of a positive and speedy decision,⁴⁴ the ECtHR considered step-child adoption to meet the requirements set by the Advisory Opinion. As it will be shown, this decision adds nuance to what Levi defines as the ECtHR’s ‘genetic essentialism’ by bringing the gendered effects of genetics to the fore.⁴⁵ In particular, it foregrounds the different degree of decisiveness that genetics holds for obtaining the recognition of legal fatherhood and legal motherhood, respectively.

In D. v France, the ECtHR began by clarifying its approach in Mennesson. In particular, it explained that genetics does not give rise to an obligation to recognise the relationship between the intended father and the child specifically by means of the transcription of the foreign birth certificate.⁴⁶ The Court also reiterated the legal principle established in the Advisory Opinion, according to which domestic law must offer a possibility of recognition of a legal parent–child relationship with the intended mother, although the choice of means falls within the state’s margin of appreciation.⁴⁷

According to the ECtHR, there was no reason to depart from these principles in the case at hand, even if the intended mother was genetically linked to the child.⁴⁸ Requiring the intended genetic mother to initiate adoption proceedings was considered compatible with Article 8 ECHR. Even if – the Court acknowledged – the intended mother might have difficulties envisaging adoption as the route to be legally recognised given her genetic link, step-child adoption constituted an ‘effective and sufficiently rapid mechanism’ of recognition, which did not exceed the state’s margin of appreciation.⁴⁹

On the surface, the reasoning presents the situation of intended fathers and intended mothers as equal, but when transposed into practice, the state’s obligation to allow for recognition of the relationship between intended parents in different-sex couples de facto brings unequal benefits to intended mothers and intended fathers.⁵⁰ Whilst intended genetic fathers tend to enjoy automatic recognition of the foreign birth certificate, intended genetic mothers still need to initiate adoption proceedings to be recognised as legal mothers. In the case at hand, the ECtHR explicitly acknowledged the existence of a differential treatment between intended genetic fathers and intended genetic mothers, but did not rule on this aspect because the application exclusively concerned the rights of the child.⁵¹ Even if the Court does not formally take a position on the gender discriminatory dimension of the case, D. v France shows that an imbalance between intended fathers and intended mothers still persists after the Court’s Advisory Opinion. As will be explained in the next subsection, this imbalance is due to the status of genetics as a decisive marker of legal fatherhood and, at the same time, the uncontested primacy of gestation and birth in determining legal motherhood.

10.3.3 The Trumping Effects of Genetics

This imbalance between intended fathers and intended mothers emerges even more clearly from the case of A.M. v Norway, decided in March 2022.⁵² The Court was confronted with a novel factual scenario, which the Grand Chamber had already contemplated in the Advisory Opinion, when reflecting on the negative impact of non-recognition of the intended mother–child relationship on the child’s private life: that of an intended non-genetic mother whose relationship with the child born from transnational surrogacy is at risk because of her separation from the intended father.⁵³ In this case, X was born from surrogacy in 2014, with A.M. (the intended mother) and E.B. (the intended father) recorded as legal parents on the Texan birth certificate. Although their relationship had ended well before the birth, E.B. and A.M. had remained in contact and carried on with their joint surrogacy plan. The sperm of E.B. and donor eggs were used for conception.

In the weeks following the birth and upon their return to Norway, X lived with the applicant A.M. whilst E.B. (who had meanwhile bought a new flat and was living with a new partner) visited daily. E.B.’s acknowledgment of paternity was recognised. A.M., however, could not be registered in the National Population Register as X’s mother in the absence of a valid adoption because the Norwegian Children Act provides that the woman who gives birth is to be regarded as legal mother. For a period of time, since A.M. and E.B. could not reach an agreement on the child’s residence, X moved between their houses on a daily basis. In August 2015, when the child was around seventeen months old, E.B. decided to cut off contact between A.M. and X, who has since lived with E.B. and his new partner. A.M. initiated administrative proceedings to be recognised as X’s mother or, alternatively, to adopt the child, but her application was dismissed. According to Norwegian law, the surrogate is to be regarded as X’s mother in accordance with the mater semper certa est rule. Adoption was not a viable alternative because E.B., who had sole parental responsibility, did not consent.

In April 2016, A.M. initiated further legal proceedings before the Oslo City Court to be recognised as X’s legal mother or, alternatively, to be granted contact rights. The City Court held that the guiding factor in deciding upon A.M.’s request for recognition was the child’s best interests.⁵⁴ In that regard, it noted that ‘X had been living in a safe, adequate environment since then, with E.B. as his father, H. as his stepmother, and with his halfsibling and other family members’.⁵⁵ It followed that, even if A.M. had ‘everything necessary to offer X a safe and good relationship’, this was not a sufficient ground for taking the risk of going back to a situation characterised by conflict between A.M. and E.B.⁵⁶ As to A.M.’s request for contact rights, the City Court dismissed it on the ground that there was no legal basis to grant contact rights to a person in her position. The City Court’s ruling was upheld by the High Court, and the Supreme Court refused the applicant leave to appeal.

The ECtHR considered the lack of recognition of A.M. as X’s mother compatible with Article 8 ECHR alone and in conjunction with Article 14 ECHR.⁵⁷ Whilst acknowledging that the applicant’s situation was ‘particularly harsh since E.B. had prevented her from maintaining her relationship with X and essentially put an end to [her] parental project’, the Court was of the view that this could not be attributed to the authorities.⁵⁸ Domestic courts had, according to the Court, carried out a close examination of the case and ascertained that the child’s best interests did not require a solution different from what the Children Act and adoption legislation mandated.⁵⁹ Therefore, even if ‘the applicant acted as a mother for X … with the intention that she would continue to do so in the future’ and they had ‘forged emotional bonds’,⁶⁰ the status quo established by the father’s unilateral decision to keep the child away from the intended mother coupled with the passage of time (the child was eight years old at the time of the ECtHR proceedings) ultimately prevailed and left the intended mother with no legal protection at all.

If read against the background of previous case law, two factors may explain why the impossibility for A.M. to establish legal parenthood was considered not to breach Article 8 ECHR. First, X was not a party before the Court. A.M.’s long struggle to obtain legal recognition of motherhood or at least contact – though recognised by Judge O’Leary in her concurring opinion as ‘a testament to her commitment to [the child]’⁶¹ – did not provide a legal basis to represent the child’s interests and right to family ties before domestic courts. Therefore, the applicant could not benefit from the centre-stage position given to the interests of children in previous case law.⁶² Second, unlike in previous cases, the intended mother’s request for recognition was opposed – rather than supported – by the intended and legal father.⁶³

The ECtHR’s decision lays bare not only the gendered effects but also the trumping power of genetics. Apart from confirming the precarious (legal) position of intended mothers, A.M. displays their (legal) subordination to the will of intended fathers. As expressed by Judge Jelić in her dissenting opinion, ‘E.B. ha[d] exclusive power to decide over the applicant becoming the mother of a child who was intended to be hers, when she had been unable to procreate biologically’.⁶⁴ By finding no violation, the Court’s majority turns a blind eye on the far-reaching consequences of a genetic understanding of fatherhood which – in case of tension between the intended parents – may go so far as to permanently exclude the intended mother from the life of the child she took care of and intended to raise.

To be sure, the intended mother’s mediated right to recognition can be traced back to the Advisory Opinion, where the Grand Chamber found it important to contextualise the relationship between Mrs Mennesson and her daughters before delving into the issue of recognition of intended motherhood. In the ECtHR’s own words, the question at stake ‘explicitly includes the factual element of a father with a biological link to the child in question’ and ‘the Court will limit its answer accordingly’.⁶⁵ This contextual remark seems to suggest that, in Mennesson, the intended mother was given a possibility for recognition because of her involvement in the children’s lives, but also in her capacity as the wife of the genetic father.⁶⁶ This helps to explain why the Court found no violation in A.M., especially considering the close emotional bonds the applicant had established with X before their contact was terminated by E.B., as well as her uncontested parental suitability.

Apart from reflecting a preference for stability in the form of the intact bi-parental heterosexual family, the outcome in A.M. is closely interwoven with the automatic recognition of genetic intended fathers following transnational surrogacy. Genetics places intended fathers in a position of privilege over intended mothers from the very beginning – an imbalance that is legally fortified if the relationship deteriorates.

10.4 Going to the Roots: Explaining the Precarious Position of Intended Mothers

The decision in A.M. v Norway is paradigmatic of a stratified access to legal parenthood following transnational surrogacy. In particular, to quote Judge O’Leary’s concurring opinion, it demonstrates that the journey of resorting to transnational surrogacy to avoid domestic bans is ‘particularly precarious for non-biological parents and even genetic (not gestational) mothers, in relation to whom the law has not kept apace either of social reality or of science’.⁶⁷ As mentioned above, the central role given to genetics in establishing legal fatherhood places intended genetic fathers in a privileged position as compared to mothers, as they obtain automatic recognition of their ties and, as a result, their legal presence in their child’s life is guaranteed ab initio. This section seeks to dig deeper into the roots of this imbalance, and reflects on two interrelated reasons: (1) an enduring fear of disaggregating (legal) motherhood; and (2) the immutable character of the mater semper certa est rule, in contrast with a concomitant openness to rethinking legal fatherhood in times of social change and family diversity. The combination of these two reasons underpins what I call ‘the gender of legal fictions’ governing the attribution of legal parenthood.

10.4.1 Normative Legal Fictions and the Attribution of Legal Parenthood

This section connects the imbalance between intended mothers and intended fathers supported by the ECtHR case law on transnational surrogacy to the broader regulation of motherhood and fatherhood in Western legal systems. Two basic rules have traditionally informed the attribution of legal motherhood and legal fatherhood, respectively: mater semper certa est, according to which legal motherhood is attributed to the person giving birth, and therefore on the grounds of gestation and birth; and pater est quem nuptiae demonstrant, also called the marital presumption, according to which when a child is born during marriage, the mother’s husband is presumed to be the father. Whilst these rules may often reflect the social reality, they are grounded in legal fictions, namely in ‘presumptions created by law because it is socially and legally convenient to assume that they are true’.⁶⁸

Legal fictions are common devices in legal architecture and serve different purposes. They can be ‘devices of pragmatism and efficiency, aimed at saving costs and avoiding time wasting’.⁶⁹ In some contexts, legal fictions are ‘deliberately generated in response to uncertainty’ – like in the case of the marital presumption.⁷⁰ Whilst the marital presumption may simply confirm the genetic father’s identity, it also allows the system to conceal the issue of extramarital conception, which is considered to transgress the norm of the nuclear family.⁷¹ Like any legal fiction, therefore, the pater est quem nuptiae demonstrant rule is not used to represent an actual reality but is rather a technique to successfully reach certain ends:⁷² first, to give uncertainty the appearance of certainty, and second, to safeguard the traditional family unit.⁷³ More than a reflection on genetic truth, therefore, the marital presumption is an ‘expression of a normative [legal] standpoint … towards transgressive sexual relationships’.⁷⁴

Even if the determination of legal parenthood has been conventionally presented as a ‘neutral, objective and purely factual enquiry’, it actually involves judgement.⁷⁵ It presupposes making decisions about who deserves recognition as legal parent, even in the paradigm case of a child conceived through sexual intercourse and raised by both their genetic parents. Jackson explains that requiring the surrogate to relinquish all parental rights over the child is ‘a choice which is obscured by the law’s insistence that gestation – as opposed to genetic relatedness or the intention to raise the child – is the defining feature of motherhood’.⁷⁶ Mater semper certa est is therefore ‘more [a] normative dogma than a descriptor of a social, much less natural, reality’.⁷⁷ This in turn reveals not only the ‘purposeful’ nature of legal fictions, but also their power as ‘tool[s] for governing’ society.⁷⁸ In the context of legal parenthood, legal fictions may serve as instruments of reproductive politics by providing a mechanism for the implementation of specific policy objectives,⁷⁹ such as the primacy of the heterosexual and cisgender biological family and the exclusion of LGBTIQ+ persons from the realm of family relationships.

This risk becomes particularly ‘real’ when the temporality of legal fictions, and therefore their fictitious nature, is forgotten or not taken seriously.⁸⁰ By definition, a fiction does not resolve the ultimate question at stake; ‘it simply creates a provisional solution subject to future re-evaluation’.⁸¹ In practice, however, protracted provisionality may turn into continuous – quasi automatic – applicability, as the tenacity and immutability of the mater semper certa est rule demonstrates. As will be explained later, when the social forces and ideals which have shaped filiation rules are forgotten, left unquestioned, or interiorised, legal fictions may pose a real harm to those falling outside the paradigm case.

10.4.2 The Gendered Life of Legal Fictions

Social and scientific developments, such as assisted reproductive technologies, surrogacy, DNA testing, and the proliferation of de facto cohabitation, have foregrounded the temporality of both mater semper certa est and pater est quem nuptiae demonstrant, and de facto jeopardised their validity and reliability. De jure, however, these two rules have not been subject to the same degree of questioning and contestation. Whilst legal frameworks have shown an increased openness to depart from the marital presumption when determining legal fatherhood, mater semper certa est remains ‘one of the most immutable facts’ of Western family laws.⁸² As will be elaborated upon later, this is attributable to the ‘trope of maternal certainty’⁸³ that treats gestation, motherhood, and mothering as a continuum.

Over the decades, legal frameworks have demonstrated a certain flexibility and attention to context in determining legal fatherhood. In fact, the marital presumption has always been rebuttable by proof that the mother’s husband could not be the child’s genetic father. Before DNA testing became available, the type of evidence which could displace the presumption was that the husband was sterile, impotent, or outside the country at the time of conception (extra quatuor maria in English law, ‘beyond the four seas of England’).⁸⁴ Since the 1940s, DNA technology has assisted in identifying a child’s legal father with an increasing degree of accuracy, now close to full certainty. In the context of rising divorce rates and non-formalised adult relationships, this technological development has enabled legal frameworks to react to the steadily diminishing pre-eminence of marriage by adopting genetics as the primary vehicle for grounding legal fatherhood.

Genetics, however, does not work as a father–child connector in all contexts. In the case of sperm donation, for instance, genetics is trumped by the intention to become a father. When fertility treatment is provided by licenced clinics, legal fatherhood is attributed to the consenting husband or heterosexual partner of the woman undergoing treatment, rather than to the sperm donor. Outside the paradigm case, therefore, the determination of legal fatherhood rests on different tests depending on the specific circumstances.

In sharp contrast, the definition of legal motherhood continues to be ‘rigidly inflexible and inattentive to the different contexts in which children are conceived’.⁸⁵ Even if there have long been multiple paths to motherhood, such as adoption and fostering, a ‘mother’ has been conventionally understood to be a woman who both bears and cares for a child.⁸⁶ Shifts in social and legal norms, technological advances, and the development of markets in both procreation and care have made motherhood ‘a choice for more women’.⁸⁷ In social terms, therefore, we have witnessed a certain ‘liberalisation of motherhood’⁸⁸ entailing greater possibilities to choose how to mother, although not everywhere and for everyone. When it comes to legal motherhood, however, the attribution of this status continues to be shaped by a sort of ‘biological determinism’⁸⁹ and parturition tends to remain the ‘non-negotiable criterion for motherhood’.⁹⁰ Law fails to distinguish between the physical act of ‘giving birth and being a mother’;⁹¹ rather, it tends to equate the physical act of giving birth with motherhood.

Whilst motherhood may subsequently be transferred by adoption, at the moment of birth, a child’s legal mother will generally be the birth-giver.⁹² As Mahmoud and Romanis put it, legal motherhood is perceived as ‘innately existing within a particular individual’ and therefore ‘truly irrebuttable’.⁹³ Even if there are other ways to obtain the status of legal mother, they are predicated on the primary ascription of the maternal status to the birth-giver.⁹⁴ Adoption, for example, presupposes the consent of the birth mother and/or a court decision establishing that the birth mother is unavailable, unable, or unwilling to take care of the child.⁹⁵ From this perspective, adoption does not contradict, but rather presupposes and confirms the mater semper certa est rule.⁹⁶ The same holds true for surrogacy. Even in jurisdictions where surrogacy is allowed and surrogacy contracts are valid, the structure of that contract tends to presuppose the birth mother’s priority. The intended parents acquire legal parenthood because and only if the birth mother agrees to waive her rights; and if she does not agree, she will be the child’s legal mother regardless of the child’s genetic origins and mode of conception.⁹⁷ These examples demonstrate that motherhood and procreation have been historically difficult to disassemble, potentially more than motherhood and care.⁹⁸

The inflexibility of the mater semper certa est rule leads to many problematic outcomes. In the context of surrogacy, one of the practical consequences of the gestation-based test is that the child is born into a legal limbo which, depending on the specific case, will characterise at least their first moments of life. To identify the surrogate as legal mother ab initio may bring the practical advantage of ensuring the child’s survival on paper, but ‘the price to pay for this simplicity is a fundamental misrepresentation of a reality of this child’s parentage’.⁹⁹ Far from creating certainty, therefore, the application of the mater semper certa est rule creates uncertainty and instability from a child’s (rights) perspective and for the whole family.

Apart from the practical inconveniences identified by the Grand Chamber in the Advisory Opinion, the non-recognition of the relationship between the intended mother and the child amounts to denying weight to and, consequently, devaluing the social aspects of parenthood, in particular of motherhood. Moreover, conflating gestation with motherhood ignores the experience of many surrogates who do not see their undertaking of gestational labour as an act of mothering, do not consider themselves as ‘mothers’, and – even more importantly – do not intend to mother, thus harming their autonomy.¹⁰⁰ Outside the context of surrogacy, the current conceptualisation of legal motherhood also poses real harm to birthing parents who do not identify as women.¹⁰¹ With few exceptions, the predominant trend is to register trans birthing men as legal mothers of their children by virtue of their biological role in gestation and childbirth, in contrast with their male (legal) gender identity and lived experience as ‘fathers’.¹⁰²

Overall, the rigid application of the mater semper certa est rule fails to reflect contemporary diversity in family formation. This concern was also raised by Judge Jelić in her dissenting opinion in A.M. v Norway.¹⁰³ Considering recent developments in reproductive rights and the diversity of motherhoods in the twenty-first century, she considers the conflation of gestation and legal motherhood ‘overly simplistic’, and wishes for ‘a more lenient law which is able to assess individual situations of mothers and which determines the legal status of a mother on a case-by-case basis’.¹⁰⁴ Judge Jelić’s opinion echoes scholarly calls for rethinking the ‘single-static-status approach’ to legal motherhood, which does not account for the multiple ways in which motherhoods – as fluid kinship nodes – are actually practiced.¹⁰⁵

10.4.3 Explaining the Gender of Legal Parenthood

The previous section showed that, whilst the marital presumption and the broader regulation of legal fatherhood have proven adaptable, the definition of legal motherhood as grounded in gestation and birth has proven largely resistant to social and technological changes. This section takes a step further and identifies two structural factors underlying the asymmetrical evolution of the mater semper certa est and pater est quem nuptiae demonstrant rules: (1) a long-standing socio-legal desire to preserve the unitary status of motherhood, and (2) gendered notions of care and parenting underlying the regulation of legal parenthood, which remain largely uncontested.

In Western legal systems, the regulation of parent–child relationships is based on the ‘unalterable two-parent paradigm’, according to which a child can only have two parents: one father and one mother.¹⁰⁶ This goes hand in hand with the unitary nature of legal motherhood. As explained by Swennen, motherhood has traditionally been understood as an ‘indivisible bundle of parentage, parenthood and parenting rights and obligations’, which is conferred solely upon the birth-giver.¹⁰⁷ Accordingly, and in spite of the pluralisation and fragmentation of motherhood on the ground, Western legal frameworks have generally shown resistance to disaggregating motherhood, not only from gestation but also from care. In other words, gestation, motherhood, and mothering tend to be treated as a continuum in law and society.

An enlightening example of this supposed continuum is the prohibition of egg donation as compared to the typically more permissive attitude towards sperm donation, which persists in some Western jurisdictions.¹⁰⁸ The case of S.H. and Others v Austria, decided by the Grand Chamber of the ECtHR in 2011, triggers some important reflections in this regard.¹⁰⁹ This case stemmed from the complaint of two couples who needed in vitro fertilisation (IVF) treatment, the first with the use of donor sperm and the second with the use of donor eggs, to have children genetically linked with at least one of the prospective parents. Under Austrian law at that time, egg donation was prohibited in all circumstances, while sperm donation was allowed only for in vivo fertilisation. The Grand Chamber considered the restrictions imposed by Austrian law to be compatible with Article 8 ECHR.¹¹⁰ The margin of appreciation doctrine played a central role in reaching this conclusion. Given that IVF raised sensitive moral and ethical issues on which an ‘emerging’,¹¹¹ but ‘not yet clear common ground’ existed, states enjoyed a wide margin of appreciation in regulating the fast-moving field of assisted reproduction.¹¹²

The Austrian Government had put forward various justifications for its restrictions, including the need to protect women from exploitation and humiliation, and the fear of selective reproduction.¹¹³ The Austrian legislature had also been guided by the idea that the mater semper certa est principle effectively prevents the possibility of tension between a biological and a genetic mother, both of whom could claim the status of legal mother.¹¹⁴ This was considered a ‘valid wish’ by the Grand Chamber,¹¹⁵ which appreciated the legislature’s attempt to reconcile the desire to make assisted reproductive technologies available and the unease among large parts of society as to the ethically and morally sensitive issues triggered by these technologies.¹¹⁶

When hearing the applicants’ complaint, the Austrian Constitutional Court held that allowing in vitro fertilisation with donor sperm but not with egg donation did not amount to discrimination, because sperm donation ‘was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well-being of a future child’.¹¹⁷ The German Government, intervening as a third party, similarly explained that in Germany, the prohibition of egg donation was necessary ‘to protect the child’s welfare from the unambiguous identity of the mother’.¹¹⁸ According to the German Government, ‘splitting motherhood might jeopardise the development of the child’s personality and lead to considerable problems in his or her discovery of identity’.¹¹⁹ More radically, the Italian Government – also a third-party intervener – argued that ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’.¹²⁰

As these quotes suggest, egg donation was and, in some contexts, still is considered to generate ‘a problematic situation of unmanageable uncertainly and destabilisation’.¹²¹ Whilst it is true that legal frameworks have already had to deal with a fragmentation of motherhood in the context of adoption, the Grand Chamber of the ECtHR acknowledged that egg donation brings about a split of motherhood which ‘differs significantly from adoptive parent–child relations and … add[s] a new aspect to this issue’.¹²² By disaggregating the genetic and the gestational components, egg donation breaks away from the understanding of gestation and motherhood as coterminous and turns maternal certainty into ambiguity.

Interestingly, in S.H. and Others, similar concerns were not raised in relation to the potential fragmentation of fatherhood following sperm donation. Split fatherhood seems not to give rise to uncertain and problematic situations or, as Palumbo frames it, the resolution of the situations it is perceived to trigger is more straightforward.¹²³ In the case of sperm donation, the father is simply the person who has consented to the treatment, and this is not considered to negatively affect the child’s welfare.¹²⁴ Reflecting upon Norwegian law, which prohibited egg donation but allowed (and still allows) sperm donation, Melhuus observes that the reason for accepting sperm donation has to do with an ‘intrinsic uncertainty about paternity’: unlike eggs, sperm comes from outside the body, thus creating no different situation from sexual intercourse.¹²⁵

As pointed out by Willekens in his historical-sociological account of motherhood, the universal function of the mater semper certa est rule is to ensure children’s and group survival.¹²⁶ Since children are unable to survive without the care provided by adults for a number of years, a responsible person must be allocated to them at birth. Because the woman giving birth is considered most likely to take care of the child spontaneously,¹²⁷ it is efficient for legal frameworks to place the primary responsibility for childcare on her.¹²⁸

That being said, when reflecting upon the rationale of mater semper certa est, it is also important to keep in mind the normative character inherent in the allocation of legal parenthood mentioned in Section 10.3.1, and in particular its gendered substrate. As observed by McCandless, the allocation of parenthood has always been informed by gendered perceptions of the two-parent family model.¹²⁹ The ‘normative politics of family life’¹³⁰ rests on the notion that children have, at most, two different-sex parents, and is grounded in a ‘principle of gender asymmetry assigning different and complementary roles to men and women’.¹³¹ That explains why, throughout history, legal mothers have been granted rights and duties different from those attributed to legal fathers. It also explains why legal efforts to keep fathers in the family picture, especially in the post-separation/divorce context, have often aimed at ensuring men’s role as breadwinners rather than their emotional presence. The principle of gender asymmetry underlying the allocation of legal parenthood also helps explain why the mater semper certa est rule was established in the first place, and why it retains its primacy in spite of increasing family diversity on the ground. The person giving birth has been considered the most likely to take responsibility for the newborn not only due to her gestational involvement but also, and especially, in her capacity as a woman.

The continuous application of the mater semper certa est rule over the centuries has only consolidated this notion. As argued by Mahmoud and Romanis, the automatic attribution of motherhood to those who give birth ‘binds and confines women to a biological destiny, assuming that caring responsibilities after birth innately accompany gestation’.¹³² People who do not gestate and give birth enjoy greater freedom to make social determinations about their parental legal status.¹³³ This applies in primis to legal fathers, who, in Czapanskiy’s terminology, have often been constructed as ‘volunteer parents’, with limited parental duties but extensive protection of their autonomy to take part (or not) in a child’s upbringing.¹³⁴ Legal mothers, on the contrary, have been defined as ‘draftees’.¹³⁵ They can walk away less easily, if at all, from their extensive parental duties, and their autonomy with respect to mothering is given little and marginal protection.

In spite of a shift to gender neutrality on the face of family laws, legal parenthood remains a highly gendered institution in the fine grains of legal practice. The different evolution that the mater semper certa est and pater est quem nuptiae demonstrant rules have undergone largely attests to this. The inflexible application of the mater semper certa est rule to establish legal motherhood supports and reinforces traditional notions about gender roles: most of all, the notion that it is ideal for the newborn to be taken care of by the birthing person and, relatedly, that ‘at the moment of birth, the person who is ready and able to become responsible for the care of a newly born child is who we call a “mother”’.¹³⁶ At the same time, the more context-specific approach to determining legal fatherhood and, in the context of surrogacy, the emphasis on the genetic link of intended fathers confirm that men’s intention to parent or not to parent is taken more seriously than women’s, and therefore that intention is supportive of a ‘male approach to parenthood’.¹³⁷ More generally, Western legal frameworks seem to have more easily accepted the fragmentation of fatherhood than of motherhood because mothers continue to be perceived as, and to a great extent still are, the primary caregivers.¹³⁸

10.5 Conclusion

In spite of the many social and technological changes which have transformed and diversified how family ties are created and experienced, the legal definition of motherhood endorsed by European supranational courts remains grounded in gestation and birth. As a result, intended mothers of children born through surrogacy are often placed in a precarious or disadvantaged legal position, being denied legal rights reserved for birth-givers, such as maternity leave, and the legal recognition of their parent–child relationship – at least ab initio.

The immutability of the mater semper certa est rule and the precarious position of intended mothers are not solely indicative of a wider socio-legal reluctance to accept the fragmentation of motherhood. They are tangible outcomes of the gender of the legal fictions governing the attribution of legal parenthood. Different from the mater semper certa est rule, the pater est quem nuptiae demonstrant rule has undergone greater scrutiny and reevaluation. This has resulted in a context-sensitive approach to determine legal fatherhood, wherein also mere genetics or the intention to be a father count as legitimate and sufficient grounds for establishing legal fatherhood. By demonstrating less flexibility and adaptability to the determination of legal motherhood, legal systems reinforce the expectation that (gestational) mothers bear the primary responsibility for childcare, whilst fathers may determine their degree and type of involvement without necessarily jeopardising their legal status. These gendered expectations, which are reflected in current practices of attributing legal parenthood, act as stumbling blocks to meeting the needs and realities of many contemporary families.