Case law Developments in PIL Views and comments

The Dialogue Between Judges on the Legal Status of Children Born Through Surrogacy

The author of this post is Marlene Brosch, senior research fellow at the MPI Luxembourg.


The first advisory opinion of the European Court of Human Rights (ECtHR) under Protocol 16 to the European Convention on Human Rights (ECHR), rendered on 19 April 2019, tackled no less than the highly sensitive and controversial topic of surrogacy motherhood in the well-known Mennesson case – in particular, the recognition of the intended, non-biological mother’s legal parenthood.

The opinion from Strasbourg and the subsequent judgment of the French Court of Cassation have already triggered numerous comments and reactions (notably on this blog; see also here and here). This post aims to raise some procedural aspects of overarching interest.

From hierarchy to cooperation: the change of procedural perspective

The kick-off Mennesson case illustrates the structural change envisaged by Protocol 16 to implement human rights compliance in the Contracting States. The hierarchical approach through the condemnation of France in 2014 shifted to the cooperative, dialogical approach initiated by the Cour de Cassation through the advisory opinion request.

It should be reminded that the judicial dialogue would not have been possible in this first case if the French legislator had not paved the way, in 2016, for the re-opening of proceedings on personal status matters following a judgment of the ECtHR affirming a violation of the Convention.

In this respect, it is worth considering whether domestic rules for the re-examination of a final decision could also be interpreted as applying to advisory opinions. Could the non-binding, yet factual authority of advisory opinions lead to a review of a final domestic judgment rendered previously on the issue in question?

The role of the advisory opinion procedure within the adjudicative function of the ECtHR

The amended Rules of Procedure of the ECtHR do not explicitly clarify the processing order between individual applications under Article 34 ECHR, on the one hand, and requests for an advisory opinion under Protocol 16, on the other. However, given the nature of the questions referred (“questions of principle”), Rule 93 (2) specifies that “requests for advisory opinions shall be processed as a matter of priority […]”.

This priority is indeed crucial. The domestic proceedings are usually stayed during the advisory opinion procedure, and, in light of the fundamental rights issues involved, delays before the ECtHR may have severe impacts on the domestic case.

This priority order was precisely put into practice within the first advisory opinion procedure. A few months before the Cour de Cassation filed the request for an advisory opinion, two individual applications were lodged against France under Article 34 ECHR concerning the very same issue, i.e., the recognition of the legal parenthood of the intended, non-biological mother. The Grand Chamber delivered the advisory opinion within a record-breaking period of only six months after the Cour de Cassation had filed the request.

About half a year later, in November 2019, the joint judgment concerning the individual applications was rendered in line with the advisory opinion. This timing seems to indicate that the ECtHR includes advisory opinions in its case-law with a “leading function” to decide on identical or similar individual complaints expeditiously.

Outlook towards Luxembourg

Incidentally, the issue of parental rights and surrogacy is also occupying the CJEU. In the pending Merly case (T-505/19), a staff member of the European Parliament (EP) seeks the annulment of an EP decision refusing to grant him adequate special leave to take care of his twin children newly born via surrogacy. In C.D. (C-167/12) the ECJ tackled a similar situation concerning maternity leave for the intended mother, which was denied under EU employment directives.

However, in the pending case before the General Court, the applicant directly claims a violation of the right to respect his family life under Article 8 ECHR in conjunction with Article 14 ECHR.

Thus, further implications of the recent developments in Strasbourg remain to be seen.

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