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European Court of Human Rights — Surrogacy

The D v. France judgment of the European Court of Human Rights: Surrogacy abroad. No obligation to recognize or record the parent-child relationship between the child born abroad through surrogacy and the intended mother, even if the intended mother is at the same time the genetic mother. Giving access to adoption proceedings is sufficient.

The European Court of Human Rights develops, by judgment of July 16, 2020 (D. v. France, no. 11288/18) , the solution indicated by its advisory opinion of April 10, 2019 at the request of the French Court of Cassation (P16-2018-001) in the Mennesson II case: it is sufficient for a Contracting State to give de possibility for the intended mother to adopt the child born through surrogacy. New contribution of the judgment: this solution applies even if the intended mother is the genetic mother of the child, having provided the gametes implanted in the surrogate mother’s uterus.

The judgment confirms the solution adopted in the D. case by the French courts. It held that no matter what difference in treatment French positive law created, as regards the establishment of parent-child relationship, between the intended father, who was also the biological father, and the intended mother, who was also the genetic mother. In fact, the present application does not concern the rights of the intended parents with regard to the Convention, but only those of the child. However – and this is the decisive factor – the rejection of the request for a transcript did not preclude the establishment of mother-child relationship, even in the form of adoption. 

The judgment notes (§§ 21 and 22) that after the D. case was finally decided in France, the French Court of Cassation reversed its case law and now accepts that foreign civil status records documenting a surrogacy may be recorded purely and simply (Ass. plén. 4 October 2019, Mennesson, no. 10-19.053; Civ. 1re, 18 December 2019, no. 18-11.815 and no. 18-12.327). But the European Court does not require that this solution be adopted by the Contracting States.

P. Kinsch