International surrogacy arrangements and best interests of the child: Jurisprudence of the ECHR and Spanish authorities’ response

Abstract

Summary

I. Approach to the problem and main purpose of this paper. II. Children’s right to respect for their private life  when there is a biological tie with their commissioning father: Cases of Mennesson and Labassée v. France and Advisory Opinion requested by the French Court of Cassation. (Request no. P16-2018-001). III. Minor’s vulnerability in case of lack of biological tie between him and the commissioning parents: Case of Paradiso and Campanelli v. Italy. IV. Considerations on ECHR jurisprudence: States Parties’ obligations and questions that remain unsettled. V. Spanish authorities’ response to international surrogacy arrangements in the light of ECHR’s jurisprudence. VI. Final thoughts on the matter.

Abstract

Due to the differences on the legal treatment that States give to gestational surrogacy, some couples travel from countries where these arrangements are forbidden to places where they are allowed. Determining the parentage of the child born as a result of these contracts raises some legal issues that are not easy to solve. In this scenario, minor’s rights may be at risk. It has led the European Court of Human Rights to determine that the State Parties are free not to legalize gestational surrogacy, but this decision cannot lead to leaving the minors unprotected. According to the Court (cases Mennesson and Labassée), denying every possibility of recognition of a parent-child relationship with the intended father, when he is the biological father, would entail a violation of the child’s right to respect for his private life. When it comes to recognising a parent-child relationship in cases where there is not a biological link between the born child and any of the intended parents, the Court’s jurisprudence does not give us a clear response on the State Parties’ obligations so far.

In the advisory opinion delivered recently (10 April 2019), in response to the request made by the French Court of Cassation, the ECHR has given an answer to some of the questions that remained unsettled. When a child is born abroad through a gestational surrogacy arrangement and was conceived using the gametes of the intended father and a third-party donor, the child’s right to respect for private life requires the State not only to recognise that link, but to provide a possibility of recognition of a legal parent-child relationship with the intended mother too. Such recognition may take the form of entry in the national register of births of the details of the birth certificate legally established abroad, but it may as well take another one. The State Parties are free to use other means, such as adoption of the child, as long as the procedure laid down by domestic law could be implemented promptly and effectively. However, not every mean would serve the child’s interest with a comparable degree of satisfaction. Spanish authorities’ response to these situations, for example, does not seem to be the optimal solution when it comes to covering the needs of the children.