On 31 August 2023, the European Court of Human Rights has handed out its decision regarding application in case C. v. Italie (application no. 47196/21), on the refusal by the Italian authorities to recognize the bond of filiation established by a Ukrainian birth certificate between the child C, born abroad by surrogacy, and her biological father and her mother of intention. Article 8 of the Convention is at stake.
The Court has declared the request admissible (unanimously); it has held, by six votes to one, that there has been a violation of Article 8 of the Convention in its procedural aspect in connection with the establishment of parentage between the applicant and L.B.; and has held unanimously that there has been no violation of Article 8 of the Convention on account of the refusal to transcribe the applicant’s birth certificate in respect of her intended mother.
The decision is already available in French at HUDOC.
On a related previous ruling against Denmark, with three dissenting opinions (out of seven) see E. Sinander’s post here.
The Facts
In 2018, L.B. and E.A.M., an Italian heterosexual couple, enter into a surrogacy contract in Ukraine. An embryo from an egg from an anonymous donor and sperm from L.B. was implanted in the uterus of a surrogate mother. The applicant was born in August 2019. A birth certificate was drawn up in Ukraine.
On September 16, 2019, L.B. and E.A.M. asked the civil registrar of the Italian town of V. for the entry into the civil status register of the child’s Ukrainian birth certificate. By decision of 4 December 2019, the civil status office rejected the request on the ground that such a transcription was contrary to public order. On January 14, 2020, L.B. and E.A.M. appealed before the court of V. They requested the transcription of the certificate and, in the alternative, the transcription of the name of the biological father alone. By a decision of March 16, 2020, the court dismissed the appeal on the grounds that taking into account the best interests of the child could not lead to disregard of the principle of incompatibility of surrogacy with public order. L.B. and E.A.M. appealed against this decision and requested, by way of an interim appeal included in the appeal proceedings, the partial transcription of the birth certificate in respect of L.B. In a judgment of June 14, 2021, the Court of Appeal dismissed their appeal.
On 8 June 2022, L.B. asked the civil status office of the municipality of C.S., where he had transferred his residence, to carry out a partial transcription of his daughter’s birth certificate. By a note of July 6, 2022, the civil status office refused the partial transcription on the grounds that the prohibition of surrogacy could not be circumvented.
Ruling of the Court
On the merits, the Strasbourg Court considers that the existence of an interference with the applicant’s right to respect for her private life is beyond doubt. It recalls that such interference infringes Article 8 unless, ‘in accordance with the law’, it pursues one or more of the legitimate aims set out in the second paragraph of this provision and if it is ‘necessary in a democratic society’, the notion of ‘necessity’ implying an interference based on a pressing social need and, in particular, proportionate to the legitimate aim pursued (Mennesson v. France, no. 65192/11).
The Court finds that the rejection of the request for the entry in the civil status registers of the applicant’s foreign birth certificate was provided for by law, within the meaning of the second paragraph of Article 8, surrogacy being prohibited under Italian law. It also finds the condition of legitimate aims is met, in that the interference under examination pursued two of the legitimate aims listed in the second paragraph of Article 8 of the Convention (‘the protection of health’ and ‘the protection of human rights and freedoms of others’).
The interference is, however, not ‘necessary in a democratic society’ to achieve the pursued aims. Here, the Court differentiates:
A. On the establishment of the parent-child relationship between the applicant and her biological father, the Court recalls that, according to its case-law, Article 8 of the Convention requires domestic law to provide for the possibility of recognition of the link between a child, born as a result of surrogacy practiced abroad, and the intending father when the latter is the biological father. In addition, the Court has already noted that the absence of recognition of a parent-child relationship between a child born from surrogacy practiced abroad and the intended parent has negative consequences on several aspects of the right of the child to respect for private life; it also disadvantages the child in as far as it places him in a form of legal uncertainty as to his identity in society. It is in the interest of the child who is in this situation that the duration of the uncertainty as to the establishment of his filiation be as short as possible.
Regarding the case at hand, the Court concludes that the domestic courts dismissed the disputed claims without weighing the various interests at stake and, above all, without considering the requirements of speed and efficiency required in proceedings such as the present one. The Court finds that, in view of the particular circumstances of the case, despite the margin of appreciation afforded to the State the Italian authorities failed in their positive obligation to guarantee the applicant’s right to respect for her privacy to which he is entitled under the Convention. Accordingly, there has been a violation of Article 8 of the Convention on this point (see dissenting opinion by Judge Wojtyczek).
B. Regarding the impossibility for the applicant to have the bond which unites her to her intended mother recognized, the Court admits that Italian law does not allow the transcription of the birth certificate for the intended mother. It acknowledges, however, that Italian law guarantees the latter the possibility of legally recognizing the child through adoption. In this regard, the Court notes that, according to the Plenary Assembly of the Italian Court of Cassation, adoption enables the courts seised to assess the requirements of Article 8 of the Convention and the best interests of the child.
In view of the foregoing, the Court is of the opinion that by refusing to transcribe the applicant’s Ukrainian birth certificate into the Italian civil status registers in so far as it designates E.A.M. as her mother, the Respondent State did not, in the circumstances of the case, exceed its margin of appreciation. Therefore, there has been no violation of Article 8 of the Convention on this point.
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