5 - The Quest for Reproductive Equality

Summary

Chapter 5 examines the impact of gender, sexual orientation and civil status on access to ART and the enjoyment of family life formed through ART. Aspiring single parents, women in a relationship with a same-sex or transgender male partner, and men in a same-sex relationship are reliant on gamete donation (as well as, in the case of male couples, surrogacy) in order to have a biological child and are particularly disadvantaged by prohibitions on third-party reproduction. These remain, nonetheless, within States’ margin of appreciation. However, where a child was born following the use of donated gametes or surrogacy abroad, the Strasbourg Court requires measures of protection. Significantly, the relationship of surrogate-born children with the intended non-biological parent is equally protected whether the genetic father has an opposite-sex or same-sex spouse. The chapter criticises, however, the less favourable treatment of commissioning mothers based on a conservative understanding of motherhood as gestational.

5.1 Reproductive Rights beyond Heteronormativity and Coupledom

Non-traditional family units have gradually expanded their quest for the law’s stamp of approval through international human rights adjudication. In particular, the European Court of Human Rights (ECtHR) and the former European Commission on Human Rights have examined requests concerning same-sex cohabitation and succession to tenancies,¹ the legal recognition of same-sex couples’ familial association (whether through access to marriage or existing civil partnership regimes or the creation of an alternative institution),² challenges to the ineligibility of homosexual cohabitants for social benefits (such as the extension of sickness insurance to the partner³ or survivor’s exemption from inheritance tax)⁴ due to the absence of avenues to formalise a committed long-term same-sex relationship, as well as applications targeting the higher financial liability for child support contributions for a non-resident parent living with a same-sex, as opposed to a heterosexual, new partner.⁵ The UN Human Rights Committee has also been called upon to assess, through the lens of the International Covenant on Civil and Political Rights, same-sex couples’ ineligibility for marriage;⁶ the exclusion of long-term same-sex cohabitants, unable to opt into marriage, from economic entitlements associated with marital status;⁷ as well as the prohibition of access to divorce proceedings for same-sex couples married abroad, in circumstances where divorce was available to parties in other unrecognised marriages (polygamous/underage marriages).⁸ The issue of long-term same-sex cohabitees’ right to a survivor’s pension was raised equally under the American Convention on Human Rights.⁹ In its advisory capacity, the Inter-American Court has also advanced the right of same-sex couples to equality before the law more broadly (establishing States’ obligation to guarantee access to all the mechanisms available in domestic law, including marriage, to ensure the protection of the rights of families composed of same-sex couples without discrimination).¹⁰

Shared parenthood claims arose as a natural continuation of same-sex couples’ incremental success in asserting a right to the formalisation of committed cohabitation. As Dorothy Greenfeld and Emre Seli have noted: ‘in recent years a growing recognition of same-sex unions as culturally and socially acceptable has led inevitably to a parallel acceptance of such unions as a foundation for family’.¹¹ Pleas for a departure from heteronormativity in the understanding of conjugality¹² were followed by attempts to secure the recognition of two parents of the same sex, initially through step-parent adoption and subsequently through the acquisition of parental status for jointly planned children.¹³

Litigation in the Strasbourg Court has also seen the emergence of single-parent families by design, first in the context of foreign adoption,¹⁴ and more recently in relation to procreation.¹⁵ In fact, the advent of assisted reproduction treatment (ART) has made the choice to become a parent without being part of a couple, and more specifically a heterosexual couple, a scientific possibility. Insemination with donor sperm and the creation of embryos in vitro with donated gametes permit single women and women living with a partner of the same sex to start a family. In addition, surrogacy arrangements, based either on the artificial insemination of the surrogate mother (traditional surrogacy) or on ova donation and in vitro fertilisation (gestational surrogacy), allow single and homosexual men to become biological fathers. However, the law has accommodated these options only in a number of jurisdictions.¹⁶ According to the Rainbow Index (Europe) 2022 published by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), in Europe fifteen States permit medically assisted insemination for homosexual couples, twenty-eight permit medically assisted insemination for singles, and automatic co-parent recognition in same-sex couples accessing fertility treatment is provided for in only ten States (Austria, Belgium, Denmark, Ireland, Malta, The Netherlands, Portugal, Spain, Sweden and the UK).¹⁷ The purpose of this chapter is to inquire, in light of the judicial practice registered to date, whether there are any prescriptive obligations under international human rights law (and specifically under the European Convention on Human Rights [ECHR]) to allow single men and women or same-sex couples to have recourse to ART in the pursuit of parenthood aspirations.

This chapter will consider, on the one hand, if individuals seeking to become biological parents in the absence of a partner of the opposite sex, or of any partner at all, have arguable rights to the provision of medical assistance to procreate. On the other hand, it will examine any rights flowing from joint same-sex parenthood projects and benefitting the partner who lacks biological ties with the child. It is, in fact, an immutable biological reality that a same-sex couple can only have common children genetically related to one member of the couple, even if both partners are fertile. Studies have shown that, in order to accommodate both partners’ wish for a biological connection to the child, male couples using surrogacy sometimes prefer to have an equal number of donor eggs fertilised with each partner’s sperm and two embryos, created with their respective gametes, transferred into the surrogate’s womb, which can result in twins who are half-siblings.¹⁸ Similarly, female couples sometimes resort to what is known as ‘mutual IVF’, whereby one of the partners contributes her ova to the creation of the embryos and the other carries the pregnancy and gives birth to the child;¹⁹ this allows both women to form a connection, either genetic or gestational, with the child, although legal motherhood is ultimately allocated to one or the other depending on the applicable law.²⁰ From the viewpoint of same-sex family building, in which both partners wish to act as parents, but only one can contribute to the genetic make-up of the future child, granting access to biological parenthood through ART to one partner without recognising the legal parenthood of the other is unsatisfactory. Moreover, gaining legal parenthood in relation to a child – rather than limited guarantees for the stability of the family unit, for example, a residence/physical custody order or a parental responsibility/legal custody order (domestic terminology may vary) – is important to those concerned on multiple levels. As Fatemeh Ebtehaj has explained: ‘kinship ties are central in the acquisition and circulation of material and symbolic resources, and in their transmission to future generations. Such resources include names, identity and cultural affiliation, property, and social status.’²¹ The way in which public policy recognises kin relationships has a deep impact on selfhood, on the sense of belonging to a family and on perceptions of social acceptance. In their capacity as ‘structurally infertile’ couples,²² same-sex couples have therefore aspired to emulate kin relationships not just in a functional sense but also in the eyes of the law.

Single aspiring parents face comparable hurdles to achieving parenthood, in that they are unable to procreate without the law’s authorisation of gamete donation and, for some, surrogacy (all men, as well as women who cannot carry a pregnancy). In jurisdictions where access to these techniques is available, but restricted to (married) couples, unless such policies are adequately justified, single persons may be unfairly excluded from reproductive treatment (i.e. from healthcare provision, as well as the enjoyment of measures of protection of private and family life). The discussion of civil status in this chapter will subsume cohabitation to marriage/civil partnership for the purposes of family formation. In fact, to the extent that it confers rights and obligations (including, in some jurisdictions, legal standing to apply for adoption or for an order vesting parenthood in the applicant following assisted reproduction with donor or surrogacy), cohabitation can also be seen in contrast with ‘single’ status. Given the somewhat different legal issues that access to parenthood raises for male couples, female couples and single aspiring parents, the chapter will address their respective positions separately. A common theme running through the following sections, however, is the spectre of discrimination in the enjoyment of reproductive rights on ground of sexual orientation, gender or civil status.²³

5.2 Assisted Conception for Same-Sex Couples

5.2.1 Donor Insemination and the Recognition of the Second Female Parent

Studies have shown that common motivations in all same-sex couples choosing assisted reproduction over adoption include the wish to raise a child from birth and have a biological connection; in addition, however, female couples often choose it due to one partner’s desire to experience pregnancy and childbirth.²⁴ Unlike male same-sex partners, generally female couples do not depend on the legal availability of surrogacy for gestation and only need gamete donation to be able to conceive. What further distinguishes the two sets of couples is that sperm donation and artificial insemination are less ethically controversial and technically complex than ova donation and embryo implantation. Relatedly, the assisted reproductive techniques (ARTs) required by female couples are not strictly reliant upon State support, and they are indeed difficult to prevent in practice through regulatory obstacles. In fact, two women can enter into an informal agreement with a man prepared to act as a sperm donor; the artificial insemination procedure does not necessitate expert medical assistance, nor does it have to be performed in a medical establishment.²⁵ Nevertheless, the couple’s parenthood project remains dependent on the law’s cooperation for the recognition of legal ties between the non-biological ‘intentional’ mother and the child. The legal recognition of the non-genetic mother has not only symbolic but also practical significance, from the viewpoint of both the child and the adults concerned:

The legal sanction provided by second-parent adoption accomplishes the following: second-parent custody rights are protected should the legal parent die; protects second-parent rights to custody should the couple separate; establishes the requirement for child support from both if the couple separates, ensures the child’s eligibility for health benefits from both parents; gives both parents the legal right to make medical decisions for their children; and creates the basis for financial security in the case of the death of either parent.²⁶

The questions arising under international human rights law are (1) whether States are required to grant female couples access to donor insemination, followed by the recognition of parental status for the spouse/partner of the woman undergoing treatment, on the basis of a joint parenthood project (‘access rights’); and (2) whether States have an obligation to accommodate family units created by female couples with a donor informally, without medical assistance, or abroad, within a permissive regulatory framework (‘protection rights’). Subsidiary questions in relation to protection rights are (1) whether the ART-born child’s welfare is better served by giving the child only one legal parent at birth (the biological mother) and (2) whether step-parent adoption is adequate to safeguard the child and the couple’s interests.

One common objection to permitting donor insemination for female couples is that it deliberately creates fatherless children, although the practical consequences for children’s development or sense of identity are disputed. According to Lydia Bracken, ‘there is a growing body of research that shows that the absence of a father does not impact negatively upon children in circumstances where they are raised by two loving mothers’.²⁷ Naturally, in jurisdictions allowing the treatment of single women with donor sperm and single-person adoption, the objection that creating fatherless children is inconsistent with the future child’s welfare is insufficient to justify the exclusion of female couples from ART; other private or public interests pertaining to the attribution of legal parenthood or identity rights would have to be adduced. Similarly, if adoption by same-sex couples is permitted in a particular jurisdiction, the restriction of access to donor insemination and dual legal parenthood for female couples is more difficult to justify, although the analogy between adoption and assisted reproduction with donor has clear limitations. In fact, a distinction can be drawn between the benefits of the child-oriented liberalisation of adoption laws (maximising the available pool of adopters for existing children in need of a family) and the adult-oriented assisted reproduction legislation, which seeks to fulfil parenthood aspirations rather than address the problem of orphans and children taken into public care. Adoption and assisted reproduction with donor, albeit both being routes to non-biological parenthood, may be differently regulated to the extent that they serve different social purposes.

In respect of States’ negative obligations, an active interference with a woman’s reproductive autonomy may be said to arise if access to donor insemination is refused, compounded by prima facie discriminatory treatment if the refusal is based on her civil status or sexual orientation (e.g. if the law reserves treatment to women in a heterosexual relationship/marriage).²⁸ More difficult to establish is a positive obligation to enable the creation of legal ties between the woman’s ART-born child and her female partner, with whom she intended to found a family. Particularly contentious is the obligation to recognise legal affiliation since birth, grounded in the couple’s intention alone, as opposed to second-parent adoption, in which intention is corroborated by de facto care and the law ratifies and protects existing family units. This section will explore the extent to which international case law has accommodated either of these claims: access rights (to donor insemination and parenthood for the non-genetic intentional mother) and/or protection rights (for the family life already created by a female couple and the child born to one of them through DIY artificial insemination with donor sperm or medically assisted insemination abroad).

Since the 1990s, the ECHR monitoring bodies have had an opportunity to consider the allocation of legal parenthood/parental authority for children conceived through artificial insemination with donor and raised by same-sex female couples. Initially, the Strasbourg position was ambivalent and largely deferential to States. In Kerkhoven and Hinke v. The Netherlands,²⁹ the Commission was called upon to consider a woman’s alleged right to recognition as a parent in relation to the child born to her life partner through assisted fertilisation with donor sperm, in circumstances where both women had assumed a parental role since the child’s birth. The Commission conceded that the impossibility of establishing legal ties between the child and the de facto carer could adversely affect the child’s position in the event of her biological mother’s death or the breakdown of the adults’ relationship.³⁰ However, the Commission was not prepared to find a positive obligation for the State to afford parental rights to a woman who was not the child’s biological mother.³¹

Much of the applicants’ case hinged on the fact that the impugned Dutch legislation allowed a man to formally recognise a child as his own, whether or not the child was genetically related to him, thereby also gaining parental authority; conversely, a woman could not recognise a biologically unrelated child and establish legal ties with another woman’s child, and there was, thus, no avenue for obtaining parental authority in relation to such a child. The applicants asked the Commission to find that the law discriminated on the basis of sexual orientation, since unmarried men could establish legal ties with non-biological children through the act of formal recognition. It was held that, ‘as regards parental authority over a child, a homosexual couple cannot be equated to a man and a woman living together’.³² The qualification ‘as regards parental authority over a child’ appears to emphasise that the decision was not based on a (negative) evaluation of same-sex cohabitation; rather, it accommodated fundamental assumptions about parenthood in Dutch society, namely that a child can only have one parent of each sex, consistent with the reality of natural reproduction. The decision reveals an attachment to a biology-inspired parenthood paradigm rather than scepticism towards same-sex parenthood. In other words, the Dutch rule allowed a man to recognise a child who was otherwise fatherless, thereby restoring the natural parental dyad. The bar on the recognition by a woman of another woman’s child stemmed from the fact that the mother’s position was not vacant.

At the same time, although the Commission described the relationship between the parties as falling outside the scope of the notion of ‘family life’, it also indicated that the impugned legislation ‘d[id] not prevent the three applicants from living together as a family’. This suggests that an active interference with the ability of the female cohabitants and the child born to one of them through ART might run counter to Convention rights. Because the regulation of parenthood and parental responsibility is concerned not only with the adults’ rights but also with the superior interests of children born through assisted reproduction, the focus of the Strasbourg analysis understandably shifted away from the alleged discrimination aspect of the claim.

The broader understanding of the notion of ‘family life’ after Schalk and Kopf v. Austria in 2010,³³ which brought same-sex cohabitation within the sphere of ‘family life’, did not automatically trigger a reconsideration of parenthood; this notion remained anchored in the complementarity of one mother and one father, in accordance with natural procreation. The case of Gas and Dubois v. France,³⁴ decided in 2012, faced the Court again with the question of same-sex couples’ right to joint parenthood for ART-born children. On this occasion, the Court held that two women who had cohabited for a long time, had formed a civil partnership and were bringing up together a child conceived by one of them by means of assisted reproduction constituted a family within the meaning of Article 8. In the couple’s State of residence, medically assisted procreation using an anonymous donor was available only to infertile opposite-sex couples, and the applicants had resorted to treatment in Belgium. Significantly, the fact that the applicants’ recourse to ART abroad was contrary to domestic law did not preclude a finding that Article 8 applied to the case. However, this finding appears inspired by the reality of childcare arrangements, rather than indicating support for intentional parenthood in female couples (although the parties were formal civil partners and long-term life partners at the time they planned to found a family). Indeed, in X v. Austria, the Court also found the notion of ‘family life’ applicable to a situation where a woman had raised her female partner’s child from an early age, without having participated in the planning or conception of the child; in fact, the child had not been conceived with donor sperm and had been formally recognised by his father.³⁵

Disappointingly, in Gas and Dubois, the Court accepted the respondent’s argument that adoption by the other social parent would have the automatic effect of divesting the natural parent of her parental status, which ran against the child’s interests.³⁶ Instead of querying the rationale of this automatism and the approach to sexual orientation in the regulation of step-parent adoption of donor-conceived children, the Court dismissed a complex debate on a technicality. For the Court, the fact that French legislation did not provide for ART for same-sex couples meant that the applicants’ situation was not comparable to that of opposite-sex couples availing themselves of treatment and seeking the recognition of parental status for both members of the couple.³⁷ Consequently, the fact that adoption by the same-sex partner had the effect of depriving the mother of her own parental rights, in circumstances where adoption by a heterosexual partner left the mother’s rights unaffected, did not breach Article 8. The Court could have arguably applied its reasoning in Emonet v. Switzerland:

‘Respect’ for the applicants’ family life required that biological and social reality be taken into account to avoid the blind, mechanical application of the provisions of the law to this very particular situation for which they were clearly not intended. Failure to take such considerations into account flew in the face of the wishes of the persons concerned, without actually benefiting anybody.³⁸

The factual similarity between the two cases is notable. In Emonet, a domestic rule entailed the automatic severance of the legal relationship between a mother and her daughter as a result of the latter’s adoption by the mother’s male cohabitant; that rule was found to constitute an interference with the right to respect for family life. In fact, the blunt application of the rule divesting the birth parent of parenthood upon adoption by another did not serve the best interests of the adoptee (a dependent, disabled adult child requiring constant care and emotional support).³⁹ Analogously, in Gas and Dubois, the adoption order, which was sought to enable the two cohabitees and the child to become a family in the eyes of the law, had by default the effect of depriving the birth mother of parental status. By contrast with its position in Emonet, the Court accepted that the birth mother’s loss of status was the necessary consequence of adoption by a female cohabitee, and hence the interference was justified. Consistency with its previous case law would have required the Court to ask why adoption by the mother’s partner necessarily had that effect, as opposed to conferring parenthood on a further person. The apparent reason for the different outcome of these cases lies in the gender of the biological mother’s partner. In Emonet, the male cohabitant’s acquired fatherhood was not seen as intrinsically incompatible with the mother’s natural parenthood. Conversely, in Gas and Dubois, the adoption order would have resulted in the child having two mothers (or two parents of the same sex, however designated on the birth certificate). The Court could have examined and possibly upheld the rationale of a rule precluding a child from having two mothers. By contrast, the uncritical acceptance of a legal automatism is unsatisfactory and could be explained perhaps by a desire to avoid that more difficult debate.⁴⁰

Equally disappointing is the Court’s conclusion that a measure restricting the availability of assisted insemination with donor to infertile heterosexual couples did not raise issues under Article 14 (non-discrimination in the enjoyment of Convention rights) insofar as the applicants, a same-sex couple, were differently situated:

While French law provides that anonymous donor insemination is available only to heterosexual couples it also states that it is to be made available for therapeutic purposes only, with a view in particular to remedying clinically diagnosed infertility or preventing the transmission of a particularly serious disease. … Hence, broadly speaking, anonymous donor insemination in France is confined to infertile heterosexual couples, a situation which is not comparable to that of the applicants.

The finding that same-sex couples and infertile heterosexual couples are differently situated is predicated on a narrow view of ‘infertility’ and of the ‘therapeutic purposes’ of ART, which overlooks the social infertility of all same-sex couples. While this view is, however, tenable, and it might obviate the need for a discussion of direct discrimination, one would have expected the Court to also consider the potential indirect discrimination embedded in the impugned law. In fact, by limiting donor insemination treatment to cases of infertility and inheritable disease, the law affected same-sex couples much more dramatically. The French assisted reproduction regime may have ultimately been found justified, but the absence of analysis weakens the ruling.

Additionally, the impossibility of adoption in relation to a same-sex civil partner’s ART-born child also required further analysis, since legal parenthood following assisted reproduction was not an option. Instead, Gas and Dubois continued the oversimplifying approach to ‘similarly situated’ classes under Article 14 seen in Manenc v. France.⁴¹ That case regarded the allocation of joint and survivor benefits to spouses, but not to couples having entered into a Pacte Civil de Solidarité (PACS). The decision relied on the different status and package of rights and obligations associated with marriage when contrasted to PACS, such as differences under succession and dissolution legislation. The Court was readily persuaded that all civil partners, whether of the same sex or the opposite sex, received the same – less favourable – treatment when compared to spouses (who were the sole beneficiaries of this measure). The analysis did not acknowledge that same-sex couples did not have the option to choose between marriage and civil partnership and, therefore, could not opt into a higher level of commitment in order to access greater benefits. This distinction was brushed away by the reiteration of the principle that eligibility for marriage, in particular the decision whether to extend this institution to same-sex couples, remained within each State’s margin of appreciation. While the deference to States in the attribution of status is understandable, a more rigorous examination of the complaint ought to have started from recognising that the exclusion of civil partners from a family benefit, albeit apparently neutral (indeed, it did not target certain PACS specifically), affected same-sex couples with particular force.

The issue of whether the ECHR requires States not to discriminate on the basis of sexual orientation when regulating access to ART returned before the Strasbourg Court in 2018 with Charron and Merle-Montet v. France.⁴² The case presented the ECtHR with an opportunity to pronounce on the right of same-sex couples to receive ART, at least in jurisdictions recognising same-sex marriage. The complaint regarded the refusal of hospital authorities to accommodate a married female couple’s request for medically assisted reproduction, on the basis that French legislation did not authorise the provision of this type of treatment for same-sex couples. Regrettably, the case was declared inadmissible under Article 35(1) for failure to exhaust domestic remedies.⁴³ According to the Court, the hospital’s decision to reject the applicants’ request for access to medically assisted reproduction had been an individual administrative decision, capable of being challenged and set aside on appeal for abuse of authority before the domestic administrative courts, which the applicants had not attempted to do; therefore, the applicants had not used a remedy available to them under domestic law (albeit with limited prospects of success).⁴⁴ Highlighting the importance of the subsidiarity principle in a procedural sense, the Court concluded that the applicants had failed to comply with the rule on the exhaustion of domestic remedies and the application could not be entertained.⁴⁵

Nevertheless, the applicants’ arguments in the Charron and Merle-Montet v. France case, relying on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination), as well as the submissions made by the European Centre for Law and Justice (ECLJ),⁴⁶ insightfully advanced the debate on the scope of same-sex couples’ procreative rights. For the applicants, the situation of a same-sex female couple in relation to artificial insemination with donor was similar to that of a heterosexual couple in which the male is infertile; the refusal to provide treatment, therefore, discriminated against them on grounds of sexual orientation.⁴⁷ At the opposite end of the spectrum, the ECLJ’s position was that surrogacy and all heterologous reproductive technologies amount to a violation of the child’s rights under Articles 3 and 8 ECHR; in particular, heterologous fertilisation deliberately deprives the child of a father, which is a ‘serious injustice contrary to the dignity and best interests of children and future generations’.⁴⁸ The ECLJ also contested the analogy with adoption proposed by the claimants, in that adoption aims to give the child a family, and a single-parent or same-sex family is ‘the lesser evil’ when compared to being an orphan; therefore, legislation allowing single-person/same-sex couple adoption, but restricting ART (which is concerned with giving a child to a family) to heterosexual couples, was not thought to be intrinsically inconsistent.⁴⁹

After these missed opportunities for the re-evaluation of distinctions based on sexual orientation in the provision of ART, three recent cases have cast light on female couples’ right to joint parenthood for existing ART-born children: Honner v. France in 2020⁵⁰ and C.E. and Others v. France⁵¹ (two applications jointly decided in 2022 – C.E. and Others v. France and A.E. and Others v. France). In all these cases, the children had been born through assisted reproduction with donor sperm – either in overseas medical facilities (the Honner and A.E. situations) or with a friend’s help in the country of residence (the C.E. case) to same-sex female cohabitees/civil partners, as part of a joint family project – and had been raised by the couple during the first few years of their lives, until the couple’s separation. The approach of the Strasbourg Court to these petitions was to acknowledge the existence of family life between the child and the unrelated adult, on the basis of de facto close personal ties.⁵² The Court placed particular emphasis on the child being ‘the fruit of a parental project’ between the two women, on their ‘shared life’ and on the commitment of the biological mother’s partner to the child’s rearing and education⁵³ (during a period of four-and-a-half years in Honner, and four and six years, respectively, in the cases conjoined in the C.E. judgment). In addition, the concept of ‘private life’ was also found to extend to emotional bonds developed between an adult and a child in circumstances other than the classic situations of kinship, these bonds pertaining to the individuals’ life and social identity.⁵⁴ Importantly, the Court recognised that such bonds engage the child’s privacy rights as well, affiliation being an essential aspect of identity.⁵⁵ Nevertheless, all the applications were ultimately unsuccessful, largely on account of the States’ margin of appreciation in striking a fair balance between competing interests. That said, notable concessions were made in the analysis to the legal position of the applicants.

Before exploring those aspects in further detail, two essential distinctions must be noted between Honner v. France and C.E. and Others. The former concerned the denial of contact with the child based on case-specific circumstances, otherwise available under the French legal framework,⁵⁶ and it opposed the private interests of the former partners. The French courts had reversed the contact order due to the tense relationship between the adults, which rendered visitation exchanges traumatic for the child; the Strasbourg Court accepted that domestic courts had acted within their margin of appreciation and had motivated their decision, justifiably giving priority to the child’s best interests.⁵⁷ By contrast, in C.E. and Others v. France, both requests sought legal recognition of the relationship between the child and the social parent, rather than mere contact, and the private interests of the parties were in alignment. Indeed, what is remarkable about the two more recent cases is the success of private ordering, notwithstanding the breakdown of the relationship; in fact, visitation and child support arrangements often require the intervention of courts following acrimonious breakups and the adults’ inability to put the children’s interests first. Moreover, while previous ART-related applications were brought to the ECtHR by cohabiting couples during the currency of their relationship, in C.E. the application was brought jointly by the former partners, and the biological mother also applied on behalf of the child to support the recognition of the social parent.⁵⁸ These amicable, child-oriented private arrangements for financial support and contact post separation stand in stark contrast with the law’s slow adaptability to such situations.

In terms of the assessment of the interference, Honner remains largely idiosyncratic. The ratio decidendi suggests that the outcome of the case was not influenced by the nature of the applicant’s relationship to the child, and in particular the absence of genetic or legal ties. However, this invites a comparison with the general approach to private disputes over contact, typically in cases where the applicant complained about parental alienation and the authorities’ failure to enforce contact after a hostile separation.⁵⁹ Although, in the early Strasbourg case law, the failure to grant or enforce contact in situations of strong opposition from the residential carer was seen as justified by the need to protect the child’s welfare,⁶⁰ more recent case law has consistently indicated that States must take all practical measures to protect contact with the non-resident parent in the face of third-party obstructive behaviour.⁶¹ While the Honner ruling examined the application as a matter of positive obligations to secure respect for family life,⁶² it did not clarify whether intended parents of ART-born children who also acted as de facto carers are entitled to the same level of protection and standard of review in child proceedings as biological/legal parents. This involved a more nuanced discussion of what defines a parent and whether the female partner of the woman receiving assisted insemination with donor, whom the law does not recognise as a parent, has lesser rights. Also, nowhere in the judgment is there a reference to the child benefitting from continuing the relationship with the second parental figure (whether or not outweighed by the trauma caused by the unfriendly exchanges); rather, the interests of the mother’s former civil partner are seen exclusively in opposition to those of the child.⁶³

It is worth recalling that contact with a child is not exclusively a prerogative of parents. Non-parents with a close relationship with the child (e.g. relatives) can apply for visitation and are entitled to a fair trial. To that extent, the Honner judgment did not elucidate the expectations raised by the Convention in relation to same-sex parenthood in the context of medically assisted procreation. The C.E. and Others v. France judgment provided a direct examination of the specific issue of whether States must permit the creation of legal ties (through either adoption or a document attesting de facto enjoyment of civil status) between a woman and the child born through ART to her former same-sex companion and jointly planned and reared. The applications were assessed from the viewpoint of positive obligations to ensure effective respect for private and family life, insofar as they raised the issue of lacunae in French law.⁶⁴ The Court accepted that the respondent State enjoyed a wide margin of appreciation, given the ethical questions raised by the cases and the absence of European consensus on the establishment of a legal parent–child relationship between a child and the biological mother’s former partner; at the same time, that margin was narrowed in relation to the children’s claims, insofar as parent–child relationships engage an essential aspect of individual identity.⁶⁵

As regards family life, the judgment noted that the applicants encountered no difficulties in conducting their family life after the couples’ separation; indeed, the State had put in place legal instruments enabling the protection of their social ties (joint parental responsibility and shared custody arrangements, to which both parties consented); this was confirmed by the delay in the women’s applications to formalise their relationship with the children (nine years lapsed between the couple’s separation and C.E.’s application for adoption in the first case; four years between the dissolution of the civil partnership and A.E.’s application for a declaration of de facto enjoyment of status).⁶⁶ In addition, the law entitled family courts – where the child’s best interests so required – to make arrangements concerning the relationship between a child and an unrelated person who had resided stably with the child, participated in the child’s education, everyday care or accommodation, and had developed lasting emotional bonds with the child.⁶⁷ Consequently, the State had not failed in its obligation to guarantee effective respect for family life.⁶⁸

Given the Court’s focus on the personal circumstances of the applicants and the impact of the impugned measures on them, it did not address in abstracto the question of whether the law offered adequate protection to intentional parents whose relationship broke down shortly after the child’s birth and hence could not rely on long-term de facto ties through no fault of their own. It is also worth noting that, in all three cases involved in C.E. and Others and Honner, the long-term care of the children by the intentional non-genetic parents (several years) played a role in the Court’s assessment of the quality of the effective bonds. It is not clear whether the relationship between ART-born children and their intentional mother is entitled to protection as soon as the latter starts undertaking an effective parental role, by analogy with the intended mother’s position in foreign surrogacy cases.

From the standpoint of private life, the Court distinguished the applicants’ position from that of intended parents of surrogacy-born children, who are legal parents in the jurisdictions where treatment was received.⁶⁹ The Court conceded, however, that genuine bonds of a filial nature had developed between the children and the mothers’ companions, and the impossibility of securing the legal recognition of the parent–child relationship raised a serious issue in relation to the best-interests-of-the-child principle and children’s privacy rights.⁷⁰ At the same time, it noted the legal mechanisms through which same-sex partners of the genetic mothers could acquire some of the rights associated with parenthood, albeit not parental status, in particular the exercise of joint parental responsibility, with the mother’s consent⁷¹ or through recourse to the courts if consent was not forthcoming.⁷² The Court was satisfied that those mechanisms resembled, ‘to a certain extent’, the recognition of the relationship in the eyes of the law.⁷³ Finally, the judgment noted a recent development in French law, after the applications had been lodged with the Court, which benefitted the A.E. case, insofar as it allowed the retrospective recognition of affiliation for children born abroad to same-sex couples;⁷⁴ while the C.E. situation did not qualify, as conception had taken place in France through DIY artificial insemination, the option of adoption existed, at least after the child had reached majority.⁷⁵

The timeframe chosen by the Court for the assessment of the impugned law – the Strasbourg decision date as opposed to the date of the applications – is peculiar (albeit already seen in Schalk and Kopf v. Austria), and it appears based on the view that States responding to the gradual evolution of behaviours and expectations in their society in bioethical matters, and having engaged in a process of reform, cannot be reproached for not doing so earlier, given the lack of European consensus.⁷⁶ This choice is negatively affecting the applicants at hand, who do not obtain relief for what might have been a lacuna in the law at the relevant time. However, it does benefit the Court’s jurisprudence in general.⁷⁷ In fact, the finding that the State had not failed in its obligations was justified by the existence of legal avenues to secure the relationship between the child and the social mother, including routes to acquiring parental status, introduced by the time the case was heard in Strasbourg (retrospective recognition of parenthood for overseas ART-born children/adoption). This suggests, a contrario, that, at present, States who offer no mechanisms safeguarding the relationship between a woman and the child born to her (former) partner through ART during their cohabitation/civil partnership/marriage might fall short of Convention requirements.

Although the Court did not require States to grant parental status in such circumstances, C.E. and Others v. France appears to indicate that legal mechanisms conferring some of the rights associated with parenthood must be available to the non-genetic social parent, even in the absence of consent from the genetic parent and in situations of relationship breakdown. This is an important achievement for female couples’ parenthood aspirations. The judgment, albeit concluding that the respondent State had met its positive obligations, is thus deceptively supportive of the advancement of same-sex couples’ procreative rights. The acceptance that jointly planned and delivered same-sex parenthood engages both private and family life and the requirement for legislation to protect the relationship between the child and the non-genetic moral author of conception are noteworthy. Another important element is the Court’s explicit reference to the value to the child of the relationship with the social parent, albeit not legally recognisable as a parent–child relationship.

A conspicuous limitation of the C.E. and Others judgment is that it only imposes obligations vis-à-vis parent–child relationships already established via ART (abroad or without medical assistance at home). By contrast, it does not require States to allow access to ART for same-sex couples seeking to found a family within the jurisdiction. By the same token, an important part of the rationale for the decision is based on the identity rights of existing children, which do not arise in relation to future children and hence cannot support access-to-ART claims. A parallel may be drawn with the Court’s case law on parenthood following foreign surrogacy arrangements: while the relationship between a surrogacy-born child with the biological parent and the other intended parent must be protected, the legalisation of surrogacy is left entirely within the discretion of each State.⁷⁸ In D. and B. v. Austria, a discrimination claim in connection with access to donor insemination followed by joint custody was struck out after legislative reform extended eligibility to same-sex couples.⁷⁹ The Court did not clarify whether the reform responded to an ECHR obligation and if the pre-reform scheme was in breach of Article 14 read together with Article 8. It simply noted that the rights sought by the applicants were ‘evolving rights with no European consensus established as yet’ and therefore States ‘enjoy a certain margin of appreciation in the timing of the introduction of legislative changes’.⁸⁰

Interestingly, C.E. was the first purely domestic ART case, without a cross-border element, concerning the relationship with an existing ART-born child (as opposed to ‘access’ cases, e.g., S.H. and Others v. Austria). In fact, the child was the product of DIY artificial insemination in the country of residence, outside the framework of the law, that is, carried out with the help of a friend acting as donor, all parties agreeing that the women would co-parent the child. This distinguishes the C.E. case from the A.E. scenario (two women receiving treatment abroad, where the law offered the procreative assistance sought – essentially the Gas and Dubois v. France matrix); it also distinguishes it from the majority of surrogacy cases heard in Strasbourg to date.⁸¹ Nonetheless, the Court did not hesitate to find Article 8 applicable in both foreign/legal and domestic/‘illegal’⁸² situations of donor insemination and to require measures of protection for the private and family life of the adults and children concerned. This suggests that the Court might be prepared to uphold obligations in relation to the protection of de facto family life even where it is built outside a permissive legal regime, and possibly even going against express prohibitions.

A final aspect of the 2022 C.E. and Others v. France ruling worthy of notice is the approach to the alleged discrimination of children born through unregulated assisted reproduction with donor. The Court acknowledged the potential issues, under Article 8 alone or read in conjunction with Article 14, raised by the exclusion of children born in France from the new Bioethics Act, which allowed the (retrospective and prospective) recognition of affiliation between a child born overseas through ART and his/her mother’s same-sex companion. However, the Court was hastily dismissive of that possibility, invoking the State’s margin of appreciation (however narrow, given the best interests of the minors at stake) and a generic reference to a fair balance being achieved.⁸³ This analysis is unsatisfactory in its brevity. Once the Court had recognised (in the context of foreign surrogacy) that the best interests of the child require the identification at law of the persons responsible for his or her care and well-being,⁸⁴ one would have expected it to investigate whether French law discriminated against some children merely on the ground of their place/circumstances of conception or birth. The Court could have well found that the different treatment pursued a legitimate objective, such as deterring the use of ART by female couples in France, while accommodating, as a fait accompli, situations legally created abroad. Even so, the magnitude of the impact of this restriction on the child (and possibly the de facto carer as well) might have outweighed the public interest, unless alternative mechanisms falling short of legal affiliation were deemed sufficient to protect effective private and family life. The absence of any analysis merely on the basis that, in the specific case before it, adoption had become an option after the child had turned eighteen does not assist with the assessment of the law at the material time and does not contribute to the general understanding of non-discrimination issues in relation to children born to same-sex couples outside a dedicated legal framework.

5.2.2 The Complex Pathway to Fatherhood in Male Couples: Surrogacy and Ova Donation

Biology rather than man-made law is the first obstacle to achieving equality in respect of reproductive rights. In fact, male same-sex couples wishing to found a family cannot do so through natural procreation. For such couples, access to assisted reproduction, in particular traditional surrogacy, or gestational surrogacy combined with ova donation, is the only route to attaining biological fatherhood. In its ‘General Comment No. 22’ (2016), the Committee on Economic, Social and Cultural Rights has highlighted that equality requires the acknowledgement of different reproductive needs: ‘Substantive equality requires that the distinct sexual and reproductive health needs of particular groups, as well as any barriers that particular groups may face, be addressed.’⁸⁵ Barbara Stark has suggested that the legalisation of surrogacy can be seen as a way of ensuring gay couples’ equal right to become a parent.⁸⁶ The question arises whether human rights law imposes or should impose any obligations on States to permit practices such as surrogacy agreements and ova donation for the treatment of individuals and couples dependent on them to procreate, inter alia, single aspiring fathers and male same-sex couples.

By contrast to sperm donation, ova donation raises significant ethical concerns;⁸⁷ it requires the patient to undergo the risks of an invasive surgical procedure (and of the preceding ovarian stimulation regime) without clinical benefit to herself, which may run counter to the bioethical principles of beneficence and non-maleficence. Further ethical concerns include the difficulty of obtaining genuine informed consent in circumstances where the risks to the egg donor are unknown and the donor is offered substantial compensation.⁸⁸ In addition, objections to any positive entitlement to ova donation can be raised on the basis of ordre public and the pre-eminence of the future child’s best interests. For instance, it could be adduced that the deliberate creation of motherless children, as opposed to the adoption of abandoned minors by same-sex couples, is both against public policy and inconsistent with the child’s welfare. However, for such an objection to avoid discriminatory undertones, the approach to deliberate single parenthood (whether one mother or one father) would have to be consistent.⁸⁹ It was, indeed, on this basis that E.B. v. France was primarily decided: a legal system allowing single-person adoption but not adoption by a single person in a same-sex relationship breached Article 8 taken in conjunction with Article 14 for lack of a cohesive approach to the child’s best interests:

Regarding the systematic reference to the lack of a ‘paternal referent’, the Court disputes not the desirability of addressing the issue, but the importance attached to it by the domestic authorities in the context of adoption by a single person. … Her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings.⁹⁰

A right to fatherhood for same-sex couples through medically assisted reproduction is not supported by the current state of international human rights law. Although this specific question was not before the ECtHR, in cases involving heterosexual couples, such as S.H. and Others v. Austria and Mennesson v. France,⁹¹ the Court noted that ECHR States take different approaches to ova donation and surrogacy, and because of the sensitive ethical issues involved, it is not the Court’s place to substitute its judgment to that of national legislatures. However, there is an argument to suggest that the blanket refusal of access to ova donation and surrogacy, not targeting same-sex couples specifically, may nonetheless have a greater impact on them. Consequently, there may be an unintended discriminatory aspect to it. As Boucai has pointed out,⁹² unlike ‘disparate treatment claims’, which ‘concern policies and practices that specifically disadvantage LGBT people’, ART claims are ‘disparate impact claims’, that is, they ‘concern policies and practices that do not single out LGBT people for unfavourable treatment but nonetheless affect them disproportionately relative to the population at large’, because of their inability to have children through intercourse.⁹³ There is, to date, no authority on this argument from international litigation, but given the Strasbourg Court’s general reluctance to engage with challenges to eligibility for ART treatment and its dismissal of claims based on Article 14 taken with Article 8 in other same-sex reproduction cases (e.g. C.E. and Others v. France), it is unlikely to gain traction in the short run.

The case of A.L. v. France tangentially touched upon the issue of fatherhood for same-sex couples. The applicant was in a relationship with another man and together had sought the services of a surrogate mother in order to have a child, in breach of domestic legislation. However, the Strasbourg case was merely concerned with the alleged breach of the genetic father’s right to private life as a result of protracted court proceedings for challenging the paternity of the man to whom the surrogate had sold the child. There was no discussion in the judgment of a right for same-sex couples to become parents through ART (which domestic law did not permit) or of intentional parenthood. Rather, the focus of the judgment was on the excessive length of proceedings, which predetermined the outcome of the case, in that the child, aged six when the case was finalised, was likely to be harmed by the belated recognition of, and transfer to, the genetic father.⁹⁴

The issue of same-sex couples and parenthood achieved via overseas surrogacy was before the ECtHR in Valdís Fjölnisdóttir and Others v. Iceland.⁹⁵ However, neither intended parent had genetic links to the child, and the decision revolved around family life arising from long-term care, under a foster care order. The Strasbourg treatment of the case echoed the approach to heterosexual couples in which neither parent has genetic ties to the child, seen in Paradiso and Campanelli v. Italy, except in the latter case the Court found that there had been insufficient time to create family life, given the immediate removal of the child by social services.⁹⁶ Valdís Fjölnisdóttir and Paradiso and Campanelli suggest that, regardless of the couple’s sexual orientation, the Court does not uphold intentional parenthood in foreign surrogacy cases if neither member of the couple is a genetic parent.⁹⁷

S.-H. v. Poland presented the Court with a case of overseas surrogacy commissioned by a male couple in which one of the partners was the genetic father.⁹⁸ However, the case is not susceptible to extrapolation due to the parties’ unusual circumstances: the family ties and the children’s nationality rights were recognised and adequately protected in two jurisdictions, including the family’s place of residence, and the applicants sought recognition from a third jurisdiction – the place of birth of the biological father. The Court found Article 8 inapplicable to the Polish authorities’ refusal to grant Polish nationality by descent to the twins born through surrogacy in the United States to a same-sex couple residing in Israel, where legal parent–child ties were recognised, although the intended biological father was a Polish-Israeli citizen.⁹⁹ While Polish law conferred Polish nationality on any child born to a Polish citizen, surrogacy was prohibited, and the American birth certificates, indicating two men as the parents, ran counter to basic principles of the Polish legal order; therefore, the commissioning genetic father could not be treated as the legal father.¹⁰⁰

Even making allowance for the specific circumstances of the case, the ruling is not entirely convincing. Instead of focusing on the principled contention that all parents had to be able to pass on their nationality to the child, and that all children were entitled to acquire their biological parents’ nationality, regardless of the mode of conception, the Court preferred a consequence-based approach. Arguably ill-suited to identity cases, this approach placed the burden on the applicants to demonstrate that the inability to acquire Polish nationality had sufficiently serious negative consequences for them.¹⁰¹ The Court dismissed the claim that the measure hindered the family’s potential relocation to Poland on account of Israel’s difficult geopolitical situation, because no details of imminent plans had been presented.¹⁰² It further reasoned that the children already had dual US-Israeli citizenship, and therefore the courts’ refusal to sanction the acquisition of Polish citizenship had not rendered them stateless; nor had they encountered any practical difficulties in their country of residence (Israel) as a result of that decision.¹⁰³ While the Court conceded that the applicants must have experienced some obstacles as a result of not having Polish, and consequently European, citizenship, those were not deemed sufficient to cross the threshold of seriousness required for the application of Article 8.¹⁰⁴

Interestingly, the Court distinguished the case from Mennesson v. France, where it had found that the lack of a possibility of recognition of the legal relationship between the child born through surrogacy abroad and the intended biological father violated the child’s right to respect for private life, on the basis that ‘this link is recognised in the country where the family resides’.¹⁰⁵ One might find this logic peculiar, as it is tantamount to saying that one State meets its obligations under the Convention simply because another State protects the rights claimed by the applicants. Admittedly, the Polish authorities’ refusal to give effect to the foreign birth certificates had not left the children in a legal vacuum, insofar as the legal relationship with the biological father and citizenship rights were granted by Israel, the State of residence. However, in Mennesson, the existence of other countries recognising the legal parent–child relationship did not absolve France from its responsibilities; since Poland exercised effective jurisdiction over the children in relation to the acquisition of rights descending from the biological father’s nationality, its failure to respect the children’ identity rights should have been recognised. Equally paradoxical is the reference to the Directive 2004/38/EC, pursuant to which the applicants, as family members of an EU citizen, were entitled to reside in the territory of another EU Member State.¹⁰⁶ One would be hard-pressed not to read, behind the Court’s emphasis on practical detriment in S.-H. v. Poland and unconvincing attempt to distinguish from Mennesson v. France, the unease with confronting another distinction between the two cases: the commissioning couple’s sexual orientation.

Regrettably, the claim brought on behalf of the children under Article 8 taken in conjunction with Article 14 – different treatment in the conferral of citizenship based on the parents’ sexual orientation¹⁰⁷ – was superficially dismissed on the basis that Article 8 had not been found applicable. This position appears untenable. Article 14 jurisprudence has established that the ‘significant detriment’ test used for the assessment of Article 8 taken alone is not relevant to discrimination claims. In cases such as Abdulaziz, Cabales and Balkandali v. The United Kingdom, the Court had clarified that being excluded from a discretionary benefit, that is, a more favourable treatment not owed under the Convention, raises an Article 14 issue just as much as suffering a prejudice: ‘The notion of discrimination within the meaning of Article 14 (art. 14) includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.’¹⁰⁸ In S.-H. v. Poland, even if the conferral of nationality is seen as a privilege (as opposed to the refusal to grant nationality being a detriment), the less favourable treatment cannot be justified by the fact that it did not cause statelessness or significant practical difficulties.¹⁰⁹ Consequently, the claim under Article 14 read with Article 8 deserved further analysis.

Moreover, under Article 8 taken alone, the Court had placed the burden on the applicants to show significant disadvantage; in discrimination cases, a strict proportionality test is applied, placing the burden on the State to justify the need for differential treatment.¹¹⁰ Any other children born to a Polish genetic father would have acquired Polish nationality by virtue of jus sanguinis. The applicant children had been treated less favourably owing to the indication of two parents of the same sex on their birth certificates. Albeit reiterated by the Court,¹¹¹ the fact that they resided abroad should not have been deemed relevant (certainly not dispositive), because foreign residence was not an impediment to the transmission of nationality to children of opposite-sex couples. This difference in treatment should have inspired a discussion of whether Polish law took a discriminatory approach to children born to same-sex commissioning couples through overseas surrogacy; the children’s dual nationality reduced the practical significance of the inability to acquire Polish nationality, but did not obviate the need for a minimum standard in the legal treatment of all surrogate-born children. Nor is it clear that a less intrusive measure upholding Polish public policy values was unavailable, for example, recognising the relationship with the genetic father and the ensuing citizenship rights, without recognising the father’s partner as a legal parent.

In the aftermath of the Grand Chamber’s Advisory Opinion No. P16-2018-001, which confirmed the obligation to introduce an effective mechanism through which the non-genetic intended mother could establish parental ties with the surrogate-born child related to her husband,¹¹² it was suggested that the same approach must be extended to the non-genetic intended father in same-sex couples; otherwise, the State would fall foul of non-discrimination principles. Relying on the non-discrimination principles emerging from Gas and Dubois v. France and X and Others v. Austria,¹¹³ Lydia Bracken argues that a non-genetic intended father is in a directly comparable position to a non-genetic intended mother, and therefore the same mechanism for recognition of legal ties to the child should be available to them.¹¹⁴ However, the non-genetic intended mother has no rights herself (Mennesson v. France and the Advisory Opinion make it clear that the recognition of affiliation is the child’s right); consequently, the non-genetic intended father cannot rely on Articles 8 and 14 to claim equal treatment.¹¹⁵ Conversely, the case could be made that the surrogate-born child with two intended parents of the same sex is suffering discrimination (based on the circumstances of conception or on the gender of one of the intended parents) if the relationship is not recognised, where a child with two opposite-sex intended parents would have two legal parents. This debate has now been superseded by the D.B. and Others v. Switzerland judgment,¹¹⁶ although interestingly the case was decided under Article 8 taken alone (upholding only the child’s right to private life).¹¹⁷

The case of D.B. and Others v. Switzerland faced the Court directly with the regulation of the relationship between children born through foreign surrogacy to same-sex couples and the non-genetic intended fathers. The application concerned a Swiss same-sex couple who were registered partners and who had entered into a gestational surrogacy contract in the United States; while the parent–child relationship was established by a US court in relation to both of them, the Swiss authorities had only recognised the genetic father. In Strasbourg, it was held that the child’s Article 8 rights had been breached as a result of the absolute impossibility under domestic law to achieve recognition of the parent–child relationship with the non-genetic intended father; in fact, step-parent adoption was initially open only to married couples, to the exclusion of registered partners, and a change in the law permitting adoption by a registered partner had intervened when the child was nearly eight years old.¹¹⁸ Consequently, no route to securing the recognition of the parent–child relationship with the social father had been available for a substantial period of time. Withholding recognition of the lawfully issued foreign birth certificate insofar as it concerned the social father, without providing any alternative means of recognition, had not been in the best interests of the child and had amounted to a disproportionate interference with his right to respect for private life.¹¹⁹ By contrast, as regards the adults’ rights, the Court noted that the surrogacy arrangement had been contrary to Swiss public policy, and the limited practical difficulties the couple were likely to encounter in their family life in the absence of recognition of the relationship between the child and the social father remained within the limits of compliance with Article 8.¹²⁰ Importantly, the Court found the objection that surrogacy was contrary to public policy pertinent but not decisive in the evaluation of the child’s rights; in fact, the parents’ culpable conduct cannot detract from the primacy of the children’s best interests.¹²¹

The D.B. and Others v. Switzerland ruling marks a notable departure from C. and E. v. France,¹²² where the Court had made allowance for the gradual reform in the respondent’s society; in particular, it was satisfied that, several years after the children’s birth (when child C. was seven years old and the E. triplets were three), a legal avenue to establish filiation (step-parent adoption) had become available.¹²³ By contrast, in D.B. v. Switzerland, it was held that the respondent had overstepped its margin of appreciation by not making timely legislative provision for the recognition of the relationship between the surrogate-born child and the non-genetic father. For the Court, a lengthy period of non-recognition is not consistent with the best interests of the child, insofar as it places him in a situation of legal uncertainty as regards his identity in society and deprives him of the opportunity to live and develop in a stable environment.¹²⁴

This judgment, rendered in 2022, suggests that the legal situation at the time of the child’s birth (non-recognition of the relationship with the intended father) breached the Convention, which places the existence of that obligation around 2011 and calls into question the 2019 decision in C. and E. v. France. One might criticise the retrospective application of arguably more recent standards,¹²⁵ which superimposed an obligation not crystallised at the material time. Judge Elósegui, partly dissenting, noted that at the relevant time (2011–18), Convention case law was governed by Mennesson v. France, which only required the recognition of legal affiliation with the biological father, and not by the 2019 Advisory Opinion (extending the obligation of recognition to the intended mother). It could be argued, however, that the Advisory Opinion did not change ECHR law, but merely ascertained the correct interpretation of Article 8 at the time; that standard may well have already existed before 2019. The fact that no Strasbourg pronouncement requiring the recognition of the genetic parent existed before Mennesson did not prevent the Court from finding a violation in that case. At the same time, the impact on the children in Mennesson (where neither parent was recognised and citizenship rights were in doubt) was such that the State ought to have been aware of the disproportionate impact of its restrictive measure; nor was France faced with a clash between its public policy tenets and the acknowledgement of two parents of the same sex. Many factors supported Switzerland’s position in D.B.: the lesser practical impact on the child, the resistance in many ECHR States to altering the mother/father paradigm, the difficulty in ascertaining with precision at which point in time the obligation to recognise the social parent of the same sex as the genetic parent arose, but also the fact that, in 2018, Switzerland did reform the law. The Court could have found that Switzerland had acted within the margin of discretion afforded to it. In addition, the D.B. approach cannot be reconciled with the choice, in C.E. and Others v. France, to assess the complaint against the domestic law at the time of Strasbourg proceedings, as opposed to the law at the time the facts lamented in the complaint; this inconsistency is unfortunate for the development of the Court’s case law on fast-evolving legal areas. Thus, a conclusion less open to challenge in D.B. might have been that ECHR standards at the time of the judgment (2022) included the right sought by the applicant, which, indeed, the respondent had afforded in 2018, but that during the first seven years of the child’s life (2011–17) that new pan-European standard was not sufficiently established to warrant a finding of violation.

At the other end of the spectrum, another partly dissenting opinion would have wanted the Court to also ascertain a violation in respect of the child’s Article 8 rights taken in conjunction with Article 14, a claim which the majority of the Court saw as raising no essential separate issue requiring examination.¹²⁶ For Judge Pavli, the child had suffered either direct discrimination or discrimination by association on account of his parents’ sexual orientation; unlike children born to married parents in analogous circumstances, for the first seven-and-a-half years of his life, the applicant, born to a legally recognised couple of civil partners (ineligible for marriage), could not be adopted by one of his intended and de facto parents.¹²⁷

Nonetheless, D.B. v. Switzerland ultimately aligned the Court’s approach to children born to same-sex parents via foreign surrogacy to that established in the 2019 Advisory Opinion in relation to children born to heterosexual couples in the same circumstances; the latter was consolidated in contentious proceedings shortly after the D.B. judgment: K.K. and Others v. Denmark¹²⁸ found that the refusal to allow the intended non-genetic mother to adopt the children breached the children’s Article 8 rights (joint custody and other measures of protection were insufficient to safeguard their interests).

5.3 Transgender Parenthood and Children Born through Artificial Insemination

The allocation of legal parenthood for a child born through assisted reproduction with donor acquires a further layer of complexity when the non-biological intended parent is a transsexual. This issue was before the Court in X, Y and Z v. The United Kingdom¹²⁹ a few years after Kerkhoven and Hinke v. The Netherlands. The factual matrix contained one significant variation: the non-biological carer was a postoperative female-to-male transsexual partner. Unlike the mother’s female partner in the previous case, he acted as a father figure, although the law at the material time did not permit gender reassignment and, therefore, his gender was female for all legal purposes. On this occasion, the Court did not hesitate to qualify the three applicants as a family within the meaning of Article 8. Albeit unexplained, the different evaluation in this case seems largely owed to the fact that the social reality involved a child and two parental figures apparently of opposite sex, mirroring biological reality. The couple did not function socially as a same-sex couple, and the resulting family unit thus conformed to heteronormative expectations, fitting without difficulty within the scope of Article 8.

Despite the more favourable approach at the Article 8 applicability threshold when compared to the earlier case involving a same-sex couple and an ART-born child, the X, Y and Z v. The United Kingdom judgment ultimately revolved around the lack of European consensus on transsexuality and parenthood, hence the difficulty of establishing positive obligations under the Convention:

The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals … [nor] with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law … the respondent State must be afforded a wide margin of appreciation.¹³⁰

The Court arguably went further than necessary for the purposes of the case, in that it afforded the respondent State a wide margin of appreciation more generally in relation to the recognition of parental rights for ‘the person who acts as a father’, whether or not the situation was compounded by the discrepancy between the intended father’s legal and apparent gender. The ruling also left within States’ discretion the decision to exclude the transsexual partner who holds a gender recognition certificate and is legally classified as a male¹³¹ from artificial insemination treatment together with the aspiring mother and the attribution of legal parenthood.

Less controversially, in X, Y and Z v. The United Kingdom, the Grand Chamber placed emphasis on the child’s interests, which may justify curtailing the adults’ rights, and on the lack of evidence as to how those rights were better safeguarded (which justified a precautionary approach in Strasbourg proceedings): ‘at the present time there is uncertainty with regard to how the interests of children in Z’s position can best be protected … and the Court should not adopt or impose any single viewpoint’.¹³² Alice Margaria has noted the Court’s insistence on the lack of genetic ties between X and Z in upholding the interference, despite having prioritised effective care over biology at the Article 8 applicability stage: ‘the Court found it important to stress that, while its earlier case law where Article 8 was read to require States to actively protect family life concerned ties existing between biological parents and their offspring, “Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual”’.¹³³ While this does not necessarily disclose an inconsistency on the value assigned to social ties, insofar as the applicability test is broader than the proportionality test, the ruling appears to be influenced by a traditional understanding of parenthood as genetic. Specifically, the Court views genetic parenthood as the only form of parenthood requiring protection through the establishment of legal affiliation and takes a more laissez-faire approach to the means for safeguarding non-genetic parenthood.

This is not to say, however, that the Court was prepared to condone any interference with the family life of the applicants. When assessing the proportionality of the interference, the Court considered the disadvantages suffered by the applicants as a result of the authorities’ refusal to recognise X as Z’s legal father; it reasoned that making a will could solve the problem of the child’s lack of automatic inheritance rights upon intestacy, and that the child had British nationality by virtue of the connection with her mother.¹³⁴ In terms of Z’s sense of identity and security within her family, the Court pointed out that nothing prevented X from presenting himself as Z’s father and giving her his surname, as well as applying for a joint residence order, which also conferred shared parental responsibility.¹³⁵ The Court was perhaps unduly dismissive of the allegation of distress caused to Z whenever necessary to produce her birth certificate; it was satisfied that the use of the birth certificate in the UK was not common for administrative or identification purposes, and that neither Z nor third parties had to be informed of the reason for the absence of Z’s name from the certificate.¹³⁶

According to Ursula Kilkelly, ‘the Court clearly considered that the case concerned how the law should treat transsexuals, rather than how it should recognise children’s family ties’.¹³⁷ While the ruling seems indeed focused on the regulation of transsexualism, the Court dwells more on the child’s identity and her need for stable family arrangements than on X’s interests. The allegation of discrimination with respect to X’s rights – since a person born male was able to register himself as the father following treatment with the mother – was unfortunately dismissed as a restatement of the Article 8 submission.¹³⁸ Even if legal fatherhood following a joint reproductive enterprise was a discretionary domestic right, rather than corresponding to a Convention right, a discussion would have been desirable of whether States can legitimately distinguish, in the provision of ART, between persons who are born male (or have become legally male) and persons in the applicant’s position. Since an important part of the Court’s reasoning on Article 8 taken alone was devoted to the lack of European consensus on the new identity of transsexuals and the wide domestic margin of appreciation on its legal effects, the ruling was dominated by gender fluidity concerns and did not advance the understanding of intentional parenthood rights.

The wide discretion allowed to States as regards the means of protection of de facto family ties between ART-born children and their unrelated transsexual social parents in X, Y and Z v. The United Kingdom can be seen as largely superseded by the subsequent change of direction in the case law on transgender persons’ right to the recognition of the acquired gender as the legal gender (Christine Goodwin v. The United Kingdom; I. v. The United Kingdom).¹³⁹ Once the legal gender is aligned with the social role, challenges in relation to ART for transgender persons are similar to those experienced by other prospective parents (e.g. access to treatment may be reserved to couples/married couples in their jurisdiction, or the non-biological intentional parent of a child born through donor insemination abroad may be entitled to acquire parental responsibility but not parental status).

5.4 Single Aspiring Parents: Redefining ‘Reproductively Challenged’ Conditions

Although the development of ART was a response to infertility problems, to reduce access to medical treatment to infertile couples would be insensitive to social challenges to reproduction and modern life pressures. Gillian Douglas has noted that ‘there might be good reasons for permitting the fertile to have access’; for example, ‘women who wish to delay childbearing in order to advance their careers could store their ova until they were ready for a career break, rather than risk experiencing the difficulties in conceiving associated with older women’.¹⁴⁰ A right to delay the pregnancy through ova cryopreservation may also be justified by the lack of a partner with whom to set up a family at an age when fertility starts to decline, or to safeguard the option to procreate before undertaking medical treatment that impairs the capacity to produce oocytes. It could also be argued that, since the storage of semen before a man embarks upon treatment affecting his reproductive capacity is readily accessible, whereas ova collection and storage presuppose medical equipment and expertise, effective gender equality in the area of reproduction requires State support for women in these circumstances. Similarly, a right to assisted insemination with donor/surrogacy services may be rendered necessary by medical problems or the absence of a partner.

The availability of treatment allowing individuals to reproduce in more varied circumstances has shaped both private and social expectations. Indeed, it was remarked that ‘the casting of involuntary childlessness … as infertility (a medical condition) is relatively recent and connected with the development of new technologies to assist reproduction’.¹⁴¹ While international human rights law may be unable to micromanage the regulation of access to ART at this stage, consistency in the law is critical to avoiding discrimination; for example, if the law does not require a person to resign themself to having an infertile partner, incapable of supplying viable gametes of the opposite sex, it should also not require a single person to resign themself to the lack of a partner. Chapter 2 has discussed access to gamete donation as a means to simultaneously ensure respect for a person’s decision to become a parent and for their choice of partner. Naturally, this can be seen as extending to the choice of no partner at all (whether deliberate or fortuitous). In fact, a general restriction on access to gamete/embryo donation penalises with particular force individuals who are not in a marriage, civil partnership or stable cohabitation (the latter category being often treated as a relevant status by laws defining eligibility for adoption or ART).¹⁴² A measure reserving such treatment expressly to couples would, a fortiori, raise discrimination concerns based on civil status. It is also worth noting that medically assisted insemination for single women is permitted in twenty-seven out of the current forty-six Council of Europe Member States,¹⁴³ a sufficient majority, spread across all the geopolitical areas of the continent, to lend support to the finding that there is no pressing need to exclude this category from treatment.

Admittedly, the creation of one-parent families by design may face different objections, mostly based on the welfare of the child: the injustice of deliberately creating a fatherless/motherless child, the absence of a role model for one of the genders and the economic difficulties potentially faced by the family. The first objection would require robust evidence that the child is harmed by being given life in circumstances where he/she only knows¹⁴⁴ – and is raised by – one parent. Arguably, the quality of the care is much more important than the family structure: children can thrive in single-parent families while facing developmental challenges in two-parent families. Moreover, applying Derek Parfit’s theory on reproductive choice,¹⁴⁵ future children are not harmed by the decision to conceive them unless their lives are so impaired as a result of that decision that they are not worth living; being raised by a single parent certainly does not have that effect. As regards the second objection (absence of parental referents of both genders), in jurisdictions permitting same-sex adoption and/or same-sex access to ART, obstacles to the creation of single-parent families would be arbitrary and discriminatory. As to the risk of poverty, if, in the context of natural reproduction, State policies do not encourage individuals to reproduce responsibly, according to their financial means, but provide assistance to single women who reproduce despite being unable to afford to raise the child, wealth cannot be a precondition for single women seeking to procreate through ART. Moreover, as Douglas has observed, the economic and psychological considerations underlying the opposition to one-parent families tend not to apply to ART-born children, who are carefully planned:

Children from one-parent families might experience poverty, or the emotional trauma of their parents’ relationship breaking up, but children who are born after assisted reproduction are arguably less likely to experience such problems, since their birth was planned when the parent was already settled into her life-style.¹⁴⁶

To some extent, Strasbourg case law on the right to become a parent has evolved in time in a liberal direction, departing from the attachment to procreation as an extension of marriage and hence a prerogative of married couples. A few decades ago, in X v. Belgium and The Netherlands, the former European Commission on Human Rights held that the ‘right to found a family’ guaranteed in Article 12 was premised on the existence of a couple; in fact, the rights to marry and to found a family are merged in a single provision in the Convention.¹⁴⁷ Additionally, in M. v. Federal Republic of Germany, a case regarding posthumous marriage, the Commission stressed that Article 12 only recognised rights to ‘men and women of marriageable age’.¹⁴⁸ Since then, however, the interest in having a biological child and the right to use reproductive technologies to that end have been recognised as a component of Article 8 (see, e.g., Dickson v. The United Kingdom; Evans v. The United Kingdom; S.H. and Others v. Austria),¹⁴⁹ as well as being decoupled from the right to marry. In its more recent jurisprudence, the Court has abandoned the reference to Article 12 when it comes to procreation cases, and it examines parenthood claims under Article 8 as a matter of respect for private and family life. Therefore, the individual right to become a parent has acquired independent meaning, and a spouse (or life partner) is not a strict prerequisite for a parenthood project.

The surrogacy case law examined earlier concerned married couples and foreign arrangements, the effects of which the couples sought to have recognised in their country of residence. Single individuals aspiring to become parents through overseas surrogacy may have an analogous claim. If a single man wishes to have a biologically related child, the only medically feasible solution is to resort to traditional surrogacy or ova donation combined with gestational surrogacy. The option of traditional surrogacy increases the chances of the agreement failing due to the surrogate’s attachment to her genetic child; there may be other reasons for the intended parents to prefer third-party donor’s eggs (e.g. matching racial/ethnic/physical characteristics of the non-genetic intended parent, using a known donor whose attributes the parents would like to see transmitted to the child). Similarly, a single woman who produces viable oocytes but cannot carry a pregnancy to term, or whose health would be at risk as a result of the pregnancy or childbirth, needs to rely on surrogacy. The question arising is whether intentional human rights obligations, in particular under the ECHR, require States to permit such arrangements or recognise legal effects to arrangements lawfully entered into abroad.¹⁵⁰

Recent case law has started to engage with these questions, albeit again from a child’s rights perspective rather than as an access issue for the adult. In Foulon and Bouvet v. France,¹⁵¹ it was held that the domestic authorities’ refusal to transcribe birth certificates issued in India to surrogate-born children amounted to a violation of the children’s right to private life. In both cases (jointly decided), the applicants were the biological fathers of children born as a result of agreements entered into with Indian surrogate mothers. According to the Indian birth certificates, the men were the legal fathers and the Indian surrogates were the legal mothers. Both men wished to have their paternity recognised in France, and the children were co-applicants. After mixed fate in the lower courts, the French Court of Cassation, invoking the circumvention of the domestic ban on surrogacy agreements, upheld the refusal to register the births as documented in the Indian birth certificates. Recognising the similarity with the Mennesson and Labassee cases, notwithstanding the absence of a heterosexual commissioning couple, the ECtHR found no basis to depart from its previous rulings and concluded that the measures did not violate the right to respect for family life of either the fathers or the children, but did violate the children’s right to respect for their private life.¹⁵² By implication, the Court’s position indicates that, at least at present, Article 8 does not require positive measures of protection for the decision to become a parent when a person is entirely reliant on ART due to their civil status.

An opportunity to strengthen the rights of the single genetic parent in surrogacy arrangements presented itself with the French request for an Advisory Opinion on the recognition of a legal parent–child relationship between a child born through surrogacy abroad and the intended non-genetic mother. Addressing the question before it, the Court held that, in cases where domestic authorities have recognised the parent–child relationship between the surrogate-born child and the intended genetic father, the child’s right to respect for his or her private life requires a legal avenue for the acquisition of parenthood by the intended non-genetic mother. However, in an obiter dictum, the Court further indicated that, if the embryo transferred into the surrogate was created with the intended mother’s ova and donor sperm, the obligation to recognise the legal parent–child relationship between the child and the genetic mother arises a fortiori:

Although the domestic proceedings do not concern the case of a child born through a gestational surrogacy arrangement abroad and conceived using the eggs of the intended mother, the Court considers it important to emphasise that, where the situation is otherwise similar to that in issue in the present proceedings, the need to provide a possibility of recognition of the legal relationship between the child and the intended mother applies with even greater force in such a case.¹⁵³

While the Court envisaged a situation where both commissioning parents were also genetic parents,¹⁵⁴ it is illogical to maintain that the genetic mother has to be in a relationship with the genetic father in order for that obligation to arise. If Foulon and Bouvet v. France is not applied to single motherhood following overseas gestational surrogacy, the child’s best interests are compromised. In fact, if the single woman returns with her genetic child to her country of residence and the authorities refuse to transcribe the foreign birth certificate due to their understanding of motherhood as gestational, the child is left an orphan and deprived of all the benefits attached to maternal affiliation (including economic and citizenship rights). Additionally, the resulting double standard would likely constitute discrimination against the children based on the gender of their commissioning parent (following, mutatis mutandis, the analysis of Judge Pavli in D.B. v Switzerland).

It is possible that the obiter dictum in the Advisory Opinion simply offered a minor variation to the matrix before it, rather than revealing scepticism towards single motherhood or a conservative attachment to gestational motherhood. Perhaps somewhat speculatively, Alice Margaria has suggested that, in Evans v. The United Kingdom, ‘J’s wish to resist fatherhood was taken seriously because the child would have been born and raised by a single mother and, as such, in an unconventional family unit’.¹⁵⁵ Although the Court found that the UK legislation would also have been ECHR-compliant had it allowed Ms Evans to use the embryos, it is quite possible that ART-founded single motherhood inspired a lower intensity of review when compared to the joint biological parenthood project in Dickson.¹⁵⁶ While S.H. and Others v. Austria found against the married couple, the claim regarded heterologous fertilisation, which is a significant departure from the conventional family based on marriage and biological descent.

The centrality of marriage and co-parenting in the judicial assessment of parenthood claims can also place the intended non-biological parent at a significant disadvantage, as recently illustrated by the A.M. v. Norway decision.¹⁵⁷ In this case, a couple had resorted to foreign surrogacy after separation, and only the intended father, genetically related to the child, was recognised in Norway as a legal parent with parental responsibility. Consequently, he had been able to exclude the intended non-genetic mother entirely from the child’s life after a year and a half of de facto care, following disagreements about residence and parenting arrangements. One of the complaints regarded the lack of objective justification for treating the applicant differently from persons who were covered by the temporary Surrogacy Act 2013 on the transfer of parenthood for children born abroad by surrogate mothers, merely on the basis that she had not been married or living together with the child’s father when the child was born (the interim Act required ‘a shared wish to raise the child together’).¹⁵⁸ As forcefully put by the Dissenting Opinion of Judge Jelić, the applicant had been discriminated against on the grounds of marital status based on a narrow and obsolete understanding of co-parenting:

The notion of ‘raising a child together’ in the authorities’ understanding is remote from the reality of family life and family constellations in the twenty-first century. A multitude of couples raise their children together while not living together, ranging from separated or divorced couples to families whose parents commute or simply decide to live apart while maintaining their romantic relationship. Under such circumstances, and provided both parents are involved, they are still regarded as raising their children together. There is thus no evidence that the concept of raising a child together implies the existence of a shared family home.¹⁵⁹

Regrettably, although the Advisory Opinion No. P16-2018-001 had found that the child’s right to respect for private life required the possibility of legal recognition of the non-genetic intended parent through an effective mechanism left at the State’s discretion,¹⁶⁰ the A.M. v. Norway decision failed to assess the genetic parent’s insurmountable veto right as inconsistent with the effectiveness criterion. From the child’s perspective as well as that of the intended parent, a legal mechanism wholly dependent on the biological parent’s will, such as step-parent adoption, can be illusory. Moreover, since step-parent adoption is only available to formalised relationships (marriage, potentially registered partnerships), a mechanism requiring the intended parent to be married to the child’s genetic parent discriminates against the former on the ground of civil status, and against the child on the ground of being born out of wedlock (or shortly after the intended parents’ divorce).

Finally, hurdles raised by the civil status in accessing ART can include the free provision of treatment only to married couples. Naturally, a justiciable right to publicly funded fertility treatment seems unlikely to emerge in international human rights law. Courts have been reluctant to question decisions regarding resource allocation in healthcare and state benefits, seen as a prerogative for domestic authorities.¹⁶¹ However, resource allocation issues are not beyond the Court’s remit when the access criteria operate a difference in treatment potentially amounting to discrimination. The Court’s case law on eligibility for welfare measures, such as child benefits and parental leave allowance, demonstrates that the principle of non-discrimination can bring economic claims within the purview of civil and political rights. In fact, ECHR jurisprudence has established that ‘Article 14 comes into play whenever “the subject-matter of the disadvantage … constitutes one of the modalities of the exercise of a right guaranteed”, or the measures complained of are “linked to the exercise of a right guaranteed”’.¹⁶² In particular, Okpisz v. Germany shows that, although Article 8 does not impose any obligation to grant public assistance for childcare, those types of benefits cannot be dispensed on a discriminatory basis (e.g. residency status). Firstly, even if what is at stake is an advantage afforded under domestic law and not an ECHR entitlement, if it concerns an ECHR area, the discretionary advantages must conform to non-discrimination principles; specifically, ‘by granting child benefits, States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the benefits therefore come within the scope of that provision’.¹⁶³ Secondly, the different treatment of aliens with regard to child benefits depending on whether or not they were in possession of a stable residence permit did not have a reasonable justification and breached Article 14 in conjunction with Article 8.¹⁶⁴ Similarly, in Konstantin Markin v. Russia, the Court found that the difference in treatment between male and female military personnel regarding rights to parental leave allowance, an economic benefit related to the right to respect for family life,¹⁶⁵ discriminated unjustifiably on the ground of gender and breached Convention rights.¹⁶⁶ By analogy, access to publicly funded fertility treatment is a means to support the right to make procreative choices and pursue the interest in having a biological child, and it must be granted without discrimination, whether express or implied (e.g. by defining infertility, for the purposes of eligibility for treatment, as requiring one year of unprotected intercourse, which for a single woman would presuppose unsafe and morally objectionable casual sex).¹⁶⁷

Reproductive justice, including access to publicly funded fertility services without discrimination, might find its way into international litigation in a similar fashion. It is also worth recalling that non-discrimination grounds in international human rights law are not exhaustively defined; all human rights instruments reference ‘other status’/‘any other social condition’. Consequently, the prohibition on discrimination extends to ‘single’ status. ‘Relationship status’ rather than ‘marital status’ or ‘civil status’ is often the problem in domestic access to fertility treatment, especially that which is publicly funded. For instance, it was noted that, in English law, a woman seeking treatment with an unmarried partner is not excluded from funding, because protected characteristics under equality legislation encompass marital status, but being single, as opposed to unmarried, appears to be outside the boundaries of that notion.¹⁶⁸ The absence of ‘relationship status’ from the suspect grounds for differences in treatment under domestic legislation can be superseded in proceedings under international human rights treaties. Significantly, the Inter-American Court of Human Rights has recognised that access to ARTs in furthering the decision to become a biological parent affects a person’s autonomy and identity not just as part of a couple but also on an individual basis:

The decision to have biological children using assisted reproduction techniques forms part of the sphere of the right to personal integrity and to private and family life. In addition, the way in which this decision is arrived at is part of the autonomy and identity of a person, in both the individual dimension and as part of a couple.¹⁶⁹

Consequently, as the Inter-American Commission on Human Rights reiterated in 2016, the ban on the use of IVF breaches the rights of ‘all persons and/or couples’ under several provisions of the American Convention, namely Articles 5 (humane treatment), 7 (personal liberty), 11(2) (right to private and family life), 17(2) (right to raise a family) and 24 (equal protection of the law): ‘This prohibition is an across-the-board ban affecting all persons and/or couples who require in vitro fertilization in order to follow through with their decision to have biological children.’¹⁷⁰

5.5 The Different Treatment of Genetic Mothers in Relation to Surrogacy Arrangements

Despite notable advances towards the protection of surrogacy-based families,¹⁷¹ the jurisprudence of the ECtHR seemingly permits gender-based inequality between genetic commissioning parents. In fact, it is now well established in ECHR case law that the relationship between children born through foreign surrogacy and their intended genetic fathers must be recognised in domestic law.¹⁷² Conversely, the Court has been ambivalent on the child’s legal affiliation with the genetic commissioning mother. The case of D. v. France conceded that Article 8 allows States to secure that relationship through less immediate mechanisms, such as step-parent adoption.¹⁷³ The ambiguous position in the Advisory Opinion No. P16-2018-001 on the modalities for the recognition of the genetic intended mother in foreign surrogacy arrangements (noted in the preceding section) only confirmed that problematic finding.

The D. v. France case required the Court to pronounce on whether the refusal to transcribe the details of the mother from the foreign birth certificate on suspicion of surrogacy, while the father’s details benefitted from a presumption in favour of automatic recognition, amounted to unlawful discrimination.¹⁷⁴ In fact, the father was recognised by default, merely based on the foreign birth certificate, even in circumstances where the requested authorities suspected that the child had been born as a result of a surrogacy arrangement; conversely, the mother had to adopt the child,¹⁷⁵ and this was considered by the Court to be an effective and sufficient means of establishing maternal affiliation.¹⁷⁶ The disquieting result of the ruling is that it allows States to distinguish between the genetic commissioning parents based on their gender without reasonable justification. Unhelpfully, the paperwork initially submitted by the applicants in D. v. France had not indicated that the intended mother was the genetic mother;¹⁷⁷ nor did it contain a discrimination claim on her behalf,¹⁷⁸ and this new complaint was caught by the six-month time bar in Article 35(1).¹⁷⁹

However, the Court’s analysis in relation to Article 8 taken alone also casts light on its potential approach to a claim based on Article 14 taken in conjunction with Article 8. In particular, the Court accepted unquestioningly the argument that the refusal to recognise the relationship between the surrogate-born child and the genetic commissioning mother sought to protect the rights of the child and of the surrogate. Similar concerns might be valid in a domestic case of disputed motherhood; conversely, the foreign certificate confirmed the success of the surrogacy arrangement and the relinquishment by the surrogate mother of all parental rights (or the existence of a final judicial determination that the baby must be handed over to the commissioning parents). The refusal to transcribe the mother’s details as listed in the birth certificate cannot be, therefore, justified by the protection of the surrogate mother’s interests. Nor can it be said to protect the child, because the gestational mother is uninterested in acting as a social parent (or precluded by the law governing the surrogacy arrangement from doing so), which means that the child is effectively motherless in the jurisdiction of destination, whereas it has a willing and capable genetic mother.

An important finding in Mennesson and Labassee was that the failure to transcribe the foreign birth certificates deprived children of the recognition of parentage in respect of a biological parent (the fathers in those cases), which was not in their best interests and inconsistent with their identity rights. Instead of upholding this principle in relation to both genetic parents, D. v. France improperly placed the genetic intended mother in the same position as the non-genetic intended mother (the Mennesson/C. and E. v. France situation), effectively treating the mother’s biological ties with the child as irrelevant for the purposes of Article 8. While non-biological intentional motherhood is closer to the adoption of abandoned minors or step-children, the genetic mother contributed her gametes to conception to the same extent as the father, and neither of the two had a contribution to gestation. Moreover, for the child’s private life, the biological reality – underpinning the child’s identity – was that the intended mother was also her genetic parent. The Court ought to be prepared to find that the child’s right to respect for family life – including the development of normal ties with both biological parents – is breached by the absence of legal recognition, as are the child’s identity rights under the ‘privacy’ limb of Article 8. In fact, in the context of natural procreation, ‘the Court’s identity case law concerns both mothers and fathers, suggesting that the identity interest is equally important in both instances’.¹⁸⁰ There is no well-founded reason to depart from this principle in the case of children born through foreign surrogacy, especially since they have no effective or legal ties whatsoever with the surrogate mother.

The respondent’s justification in D. v. France for the absolute presumption of accuracy of the father’s details on foreign birth certificates and their automatic transcription in the domestic civil register, by contrast with a vetting procedure for the mother, is mystifying. According to the French government, the judicial scrutiny was rendered necessary by the fact that maternal affiliation could not be immediately verified in situations where the intended mother had not been the one giving birth.¹⁸¹ However, paternal affiliation also escapes immediate verification by the mere fact of birth (indeed, it has always been the case that pater incertus est, even at a time that medical technology had not displaced the mater semper certa principle), and yet this was not deemed an obstacle to the recognition of the intended father’s legal status. Had the law required proof of genetic parentage of both parents and subordinated the transcription of the foreign certificate to it, differential treatment concerns would not have arisen. Arguably, a procedure whereby the father is presumed such and the mother is registered subject to genetic proof would be a less disproportionate disparity of treatment. Conversely, the absolute presumption benefitting the father’s parental status, in stark contrast with the obligation for the mother to adopt her own child as a step-parent, notwithstanding her equal genetic ties, cannot be seen as consistent with Article 14 taken together with Article 8. Article 14 also applies when the more beneficial domestic treatment (in this case, the automatic recognition of the father’s legal status on the basis of a foreign civil registry document) is not mandated by Article 8, but voluntarily introduced by the State.

Equally disquieting in the D. v. France decision is the Court’s intimation that Mennesson had not required the recognition of biological ties with the commissioning father through the transcription of the birth certificate, but through any suitable means. Since the commissioning mother is also not a legal parent, and hence step-parent adoption is not an option for the acquisition of fatherhood, it is unclear what mechanism the Court envisaged. If the immediacy of the transcription of the foreign birth certificate is not mandatory, States may presumably declare surrogate-born children entering the jurisdiction abandoned; even if the genetic parents are considered eligible and preferential adopters, treating the child as an orphan upon entering the jurisdiction leaves the child in a temporary legal vacuum for the period of time required to complete adoption proceedings, a situation condemned in Marckx v. Belgium.¹⁸² The risks entailed by placing the child in a legal limbo include, in case of intervening death of one or both commissioning parents, the forfeiture of rights to which their parentage otherwise entitled them, inter alia, inheritance rights, which goes against the child’s rights to respect for private and family life. It is, in fact, well established that family life extends to patrimonial rights based on kinship.¹⁸³ In its attempt to rationalise the finding of non-discrimination in D. v. France by second-guessing the meaning of Mennesson, the Court therefore ended up watering down the progress previously achieved in developing the rights of surrogate-born children. One can only surmise that the Court wished to avoid upholding a discriminatory regime, differentiating between genetic commissioning parents based on their gender, while also avoiding requiring France to change its legislation in a sensitive area.

It is also worth noting that, in D. v. France, the step-parent adoption route was opened to the genetic mother only because the father’s legal status was already recognised and they had an ongoing marital relationship. If States are no longer required to transcribe the father’s details even where he is ascertained to be the genetic father, the mother’s step-parent adoption option falls away. The vetting procedure then becomes similar to adoption by strangers, which is a distortion of biological reality. In addition, if the commissioning couple’s relationship breaks down and step-parent adoption requires the father’s consent as the legal parent, the genetic mother is left without protection, and so is the child in respect of his/her relationship with one of the genetic parents. An inequitable situation may thus arise whereby the intended mother’s rights are subjected to a veto right afforded to the intended father; problematically, the father may have an interest in raising obstacles to the adoption so that a new female partner may adopt the child. Finally, since, until the adoption is finalised, the mother has no right to contact, the father is enabled by the law to engage with impunity in parental alienation; this fails to safeguard not only the mother’s but also the child’s rights against third-party interference. The acceptance of step-parent adoption as a suitable alternative to the immediate recognition of maternal affiliation in respect of a biological child discriminates against the mother on ground of gender and fails to secure respect for the child’s private life. It also discriminates against unmarried women resorting to overseas surrogacy, alone or as part of a couple, on the grounds of civil status; this is all the more problematic since Foulon v. France confirmed that single men who father children abroad through surrogacy arrangements are to be recognised as the legal parents upon return (based on their genetic link and the child’s identity rights).

These are the paradoxical results of a ruling excessively concerned with accommodating policy objections. D. v. France operates a gender-based distinction between parents without a reasonable and objective justification, as well as granting different privacy rights to surrogate-born children depending on whether their commissioning parent is male or female. Both intended parents are in the same situation: their genetic material was used for IVF treatment resulting in the embryo implanted into the surrogate’s body (a woman who did not wish to be treated as the mother and was not treated as the mother pursuant to the applicable law in the jurisdiction where the treatment took place), and they both embarked upon treatment with the intention to become parents. If the ECtHR does not require a free-standing route for the recognition of genetic motherhood, which does not depend on the marriage to the genetic father, a single man will be able to resort to surrogacy abroad and be recognised as the legal father in his country of residence, whereas a woman resorting to gestational surrogacy abroad as well as her biological child may be left without protection. The inequity, from the mother’s perspective, is compounded by the fact that the genetic mother’s contribution to medically assisted conception is much more onerous than the father’s: ova extraction is an invasive surgical procedure and hormonal treatment is administered to increase fertility; the commissioning mother is, therefore, much more directly involved in the treatment than the commissioning father.¹⁸⁴

Allowing States to refuse the recognition of parental status to the genetic commissioning mother (and possibly father, if the U-turn from Mennesson in D. is to be followed) has further repercussions on the surrogate-born child, depending on the effects of adoption orders in the jurisdiction in question. As an example, in English law, an adopted person cannot marry their adoptive parent, but there is no bar on marrying an adoptive sibling, grandparent or uncle;¹⁸⁵ this suggests that adoption only creates a legal tie analogous to natural procreation between the child and the parent rather than a full integration into the extended family. More generally, adoption can be inadequate in recognising the child’s links with other close relatives (e.g. grandparents), a ramification condemned in Marckx v. Belgium as incompatible with the child’s Article 8 rights.¹⁸⁶ The Court noted in that judgment:

‘Respect’ for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally. … Yet the development of the family life of an unmarried mother and her child whom she has recognised may be hindered if the child does not become a member of the mother’s family and if the establishment of affiliation has effects only as between the two of them.¹⁸⁷

The adoption route for a genetic parent is consequently unsatisfactory from the viewpoint of the child’ identity rights and the normal development of ties with the extended family. To deny surrogacy-born children the full extent of recognition as a member of their biological family would be to grant them lesser rights in relation to establishing kinship, merely on the grounds of their conception; this would be an unmitigated breach of their rights under Article 8 read in conjunction with Article 14.

5.6 Concluding Remarks

In recent years, the ECtHR’s case law has recognised the need to protect existing family ties created by singles and same-sex couples through donor insemination and surrogacy, whether through overseas treatment or domestically outside a regulatory framework (X, Y and Z v. The United Kingdom; Foulon and Bouvet v. France; C.E. and Others v. France; D.B. v. Switzerland; Advisory Opinion P-16-2018-001). This stance builds on the well-established Strasbourg approach to ‘family life’ as defined by close personal ties (and hence the obligation to safeguard de facto family units), on the understanding of privacy as encompassing identity rights, and on the priority given to the child’s best interests, even when this compels States to sanction a fait accompli.

By contrast, there is no authority in support of a right to accommodate planned ART-based families involving gamete donation and/or surrogacy. The right to respect for the decision to become a parent remains narrowly construed, as a right to protection against active interferences from the State, which may include the denial of access to homologous assisted fertilisation (Dickson v. The United Kingdom), a technique only benefitting heterosexual couples. However, where States allow third-party reproduction (which S.H. v. Austria deferred to States), the exclusion of certain categories (such as single persons or same-sex couples) will require justification. Indeed, the case law developed under the ACHR has recognised that single persons are entitled to have recourse to IVF in order to have a biological child (Artavia Murillo v. Costa Rica; Gómez Murillo v. Costa Rica).

Moreover, States continue to enjoy considerable latitude in deciding the modalities through which family life must be protected, so as to reconcile the private interests at stake with other interests in society. Although, in C.E. and Others v. France, the Court did not require the conferral of parental status to the intentional parent of children born to female couples through donor insemination, nor access to step-parent adoption, it acknowledged the reality of the family bonds between the child and the non-biological parent and the need to protect those through effective legal mechanisms (such as an order for shared parental authority with the child’s biological mother). Importantly, the Court did not differentiate between children born overseas through a lawful artificial insemination procedure with donor and those born out of unauthorised, informal assisted insemination within the jurisdiction.

In relation to surrogacy, the case law does not afford any preferential treatment to opposite-sex married couples. In all foreign surrogacy rulings, the interference with the adults’ Article 8 rights is seen justified by their foreknowledge of the inopposability of the parent–child legal ties created abroad in their country of habitual residence. D.B. v. Switzerland equalised the position of male couples and heterosexual couples when it comes to the recognition of parenthood following foreign surrogacy; although the rights of the adults were not upheld, the rights of the children to the certainty of their identity and to being raised in a stable environment were found to apply regardless of the gender of the unrelated intended parent; the principle expressed in the 2019 Advisory Opinion in relation to the opposite-sex spouse of the genetic father was thus extended to the same-sex registered partner. The judgment also removed the ambiguity as regards the acceptable routes to the recognition of the relationship between the child and the non-genetic commissioning parent, by clarifying that legal affiliation is required by the protection of the child’s identity rights (whether established through registration at birth or adoption), whereas lesser mechanisms, such as shared custody and wills, are unsatisfactory.

Recent case law has, therefore, seen progress in relation to single or homosexual male commissioning parents for whom surrogacy is the only route to biological parenthood, albeit from the child’s rights perspective. As seen in Chapter 2, the same applies to heterosexual commissioning couples: the adults benefit indirectly from the children’s right to legal recognition of the relationship (Mennesson v. France; Labassee v. France; Laborie v. France). The case of Foulon and Bouvet v. France confirmed that there is no difference between the position of single genetic commissioning fathers and those who resort to overseas surrogacy as part of a heterosexual couple (the Mennesson scenario). In both cases, the refusal to grant legal recognition to the parent–child relationship violates the child’s privacy rights under Article 8. While there are no decided applications brought by single commissioning mothers, both Article 8 taken alone and Article 8 taken in conjunction with Article 14 have the potential to support such claims in future litigation, at least through the prism of children’s rights. D. v. France and the Advisory Opinion No. P16-2018-001, albeit concerned with heterosexual couples and not requiring the transcription of the foreign birth certificate insofar as the mother’s name is concerned, indicated that a prompt and effective route to establishing legal ties between a genetic mother and her surrogate-born child must exist, although not necessarily identical to the one offered to the genetic father.

There remains thus a gap in protection against gender-based discrimination in procreative matters in the treatment of the genetic commissioning mother in surrogacy arrangements entered into by couples. To date, the case law has established (Mennesson, Labassee, D. v. France) that the genetic commissioning father must be recognised as the legal father.¹⁸⁸ The position on the genetic commissioning mother has been much more ambivalent, and the Court has accepted that step-parent adoption is a satisfactory means of protecting the rights of those concerned, without any distinction between genetic and non-genetic commissioning mothers. This not only makes the commissioning mother’s relationship with the child dependent on that with the commissioning father, but it also deprives surrogate-born children of their kinship rights on the maternal side: identity rights, as well as patrimonial and citizenship rights (while the latter two can be restored through adoption, they are placed at risk throughout the duration of the proceedings). As noted in a Separate Opinion in an intentional parenthood case, European law has lagged behind social and scientific developments:

By entering a surrogacy arrangement abroad which practice is not lawful in their own State, an intended parent embarks on a legally precarious journey … the journey 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.¹⁸⁹

The understanding of filiation as presupposing two parents of the opposite sex remains prevalent in Europe, and the Convention interpretation suggests that States can legitimately continue to adhere to it. Thus, the protection to which non-conventional family units are entitled does not necessarily extend to the legal recognition of affiliation between the child and the non-genetic social parent; an alternative route to creating legal ties, such as step-parent adoption, is equally satisfactory (D.B. v. Switzerland). While the allocation of parental authority and the right to contact with a child after separation from the biological parent are likely to give rise to successful Article 8 claims (following the principles in Honner v. France and C.E. v. France), an obligation for State authorities to record two parents of the same sex in the births register may clash with fundamental societal beliefs and attract deference in international proceedings (as seen in S.-H. v. Poland).

As regards the ECtHR’s Article 14 methodology, non-discrimination case law in the area of assisted reproduction continues to be influenced by formalistic categorisations that oversimplify the distinctions between same-sex and opposite-sex couples in terms of law and biology. This influences a key question at the core of the Article 14 analysis, namely whether the applicants can compare themselves to a category receiving more advantageous treatment:

Article 14 (art. 14) does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.¹⁹⁰

For instance, the finding in Gas and Dubois that homosexual civil partners were similarly situated to heterosexual civil partners, but not to spouses (insofar as marriage confers a special status), led the Court to conclude that the ineligibility for step-parent adoption of an ART-born child did not discriminate on the basis of sexual orientation. That finding overlooked an important distinction: opposite-sex couples having elected civil partnership over marriage and same-sex partners, only eligible for civil partnerships, do not pertain to the same category; opposite-sex couples had the option to intermarry and assume further legal obligations in order to be eligible for step-parent adoption. The situation of same-sex couples in relation to assisted reproduction would have warranted at least an exploration of potential indirect discrimination aspects.

The notion of ‘indirect discrimination’ is clearly established in international case law and concerns neutrally formulated provisions (i.e. measures not distinguishing based on a suspect ground, such as gender or sexual orientation) which in practice have ‘disproportionately prejudicial effects on a particular group’, as noted by the ECtHR in Hugh Jordan v. The United Kingdom.¹⁹¹ A similar definition can be found in the practice of the UN Human Rights Committee in the interpretation of Article 26 ICCPR (equality before the law and non-discrimination), specifically in Althammer v. Austria.¹⁹² Whether the measure (in Gas and Dubois, the bar on step-parent adoption in civil partners) is justified, despite the impact on a particular category (same-sex civil partners, ineligible for marriage), by outweighing competing rights and interests, may be open to interpretation, but the use of unsuitable comparators and the dismissal of Article 14 claims without proper analysis merely avoid tackling the substantive debate.

Access to gamete and embryo donation, the legalisation of surrogacy services and the allocation of parenthood to intentional, non-genetic parents are not the only controversial measures potentially required by substantive procreative equality. The notion of respect for the decision to become a genetic parent may expand so as to encompass the right to make use of an artificial womb, at present only explored speculatively in the literature.¹⁹³ Whereas all prospective parents may benefit from this technique, given the risks of pregnancy and childbirth, it would be particularly significant for women who can produce gametes but cannot carry a pregnancy to term, as well as for individuals/couples biologically unable to gestate – single men and male same-sex couples. This would obviate the need to resort to surrogacy, with the ensuing dependency upon the surrogate mother, in terms of both her lifestyle choices during the pregnancy that may harm the foetus (e.g. alcohol consumption) and her cooperation to transfer the baby after birth (in jurisdictions allowing her to renege on the agreement). Ruth Deech and Anna Smajdor have also pointed out the feminist perspective discrediting possible objections to the use of artificial wombs: ‘it seems that there is an injustice in the fact that if a man wants to father a child he can do so without undergoing the pains and risks of gestation and childbirth. However, a woman cannot. If we can use technological means to redress this balance, why should we hesitate?’¹⁹⁴ The idea of ectogenesis can thus be seen as a matter of reproductive equality, between men and women but also between heterosexual and homosexual couples.

Naturally, should the successful use of artificial wombs become a reality, any actionable access rights would have to consider the equitable distribution of resources in society. Several questions emerge in that respect. Should ectogenesis be subsidised by the State even when it is merely elective (i.e. there is no infertility issue, either biological or social, and no particular health risk other than those normally associated with pregnancy and childbirth)? If the State supports one’s decision to become a parent by offering financial support in relation to any number of children born through natural gestation, on what basis can financial support be denied to individuals who need an artificial womb to become parents (as opposed to public assistance to defray childcare costs)? Should there be a cap in the financial resources offered to an individual in relation to procreation (either childcare or ART), if the public budget cannot satisfy all needs? Is recourse to ectogenesis a type of medical treatment less worthy of support than the one sought by couples who reproduce with the knowledge of high risks of severe illness or disability in their offspring, which will require substantial State funding after birth? Ultimately, the question raised by any procreative treatment – against the background of finite resources in society and the traditional postnatal welfare support – is this: what entitles a person’s decision to become a parent to greater protection than that of another, whether at the conception, gestation or rearing stage?