ECtHR Overrules Danish Anti-Surrogacy Judgment

On 6 December 2022, the European Court of Human Rights (ECtHR) ruled in the Danish surrogacy case of K.K. and Others v. Denmark.

In a 4–3 judgment, the ECtHR held that Denmark violated the rights enshrined in Article 8 of the European Convention on Human Rights (ECHR), as claimed by  two children born through a commercial surrogacy arrangement in Ukraine, by not recognizing their intended Danish mother as a legal parent. However, the three dissenting judges held that there was no violation of Article 8 in the circumstances. According to the minority, a State must be able to have a policy opposing commercial surrogacy arrangements. They emphasized that Denmark recognized the legal relationship between the father and the children.

Facts

In December 2013, twins were born by a surrogate mother in Ukraine after a commercial arrangement. Ukrainian authorities issued birth certificates for the children. In the birth certificates, a Danish wife and husband were registered as mother and father. Upon their return to Denmark, the Danish authorities refused to recognize the Danish woman named in the birth certificate as a legal parent under Danish law, as she had not given birth to the children. The father was recognized, as he indeed was the biological father of the children. Due to their family connection to the father, the twins obtained Danish citizenship.

The woman continued her struggle with the Danish authorities to become registered as mother of the twins. Shortly after the refusal to recognize her as a mother, she was granted joint custody of the children together with the father. To become a legal parent, she applied for adoption of the children as a step-mother. That application was processed in different Danish authorities and court procedures for more than six years. Eventually, the Danish Supreme Court held that adoption would be contrary to Section 15 of the Danish Adoption Act as the Ukrainian surrogate mother had received remuneration.

The woman and the father filed an application to the ECtHR, claiming that their rights to a family life under article 8 of the ECHR had been violated.

Judgment

The ECtHR found, with smallest possible majority, that Denmark had violated the family rights of the two children who were also applicants in the case. In its judgment, the ECtHR referred to the principles primarily set out in the landmark judgments Mennesson and Paradiso and Campanelli. Those principles, which were effectively summarized in the ECtHR’s 2019 advisory opinion, can be said to indicate that article 8 of the ECHR, read in the light of the principle of “the best interests of the child,” protects the rights of children produced through surrogacy. Non-recognition of a parent-child relationship is therefore a violation of the children’s article 8 rights. Following those principles, the ECtHR held that Denmark did not violate article 8 in relation to the woman by not recognizing a legal parent-child relationship. However, the children’s rights under article 8 were violated by not having their relationship to the intended mother recognized. In its conclusion, the court stressed that it was in the best interests of the children to have the legal relationship recognized.

Dissenting Opinions

It is noteworthy that the judgment was a close call for the applicants. Only four of seven judges voted for the judgment. In stark contrast to the majority, the remaining three judges’ joint dissenting opinion was that Denmark had not violated any ECHR rights at all. Emphasizing that there is no consensus within the member states of the Council of Europe on the sensitive matter of commercial surrogacy, the dissenters initially held that there must be a margin of appreciation for states to strike a balance between private and public interests or convention rights. According to the minority, the judgment “practically eliminate[s] altogether, in substance, the margin of appreciation” for foreign commercial surrogacy arrangements. The minority also questioned the majority’s application of the principle of the best interests of the child. In the judgment, it is held that the best interests of the children are “paramount”. For its part, the dissenting opinion states that the best interests of the children shall be a “primary consideration” which is the standard set out in international law.

Analysis

It is illustrative of the split opinions that the judgment only gathered the narrowest possible majority. For states opposed to commercial surrogacy arrangements, there seems to be very few tools in the toolbox. On the other hand, it is clear how hughly the best interests of the child are valued. For the time being, it seems hard to bridge the differing values underlying the judgment’s majority opinion and the dissenting minority opinion, respectively.