...
THE FACTS
1. The applicants, Mr D. and Ms R., are Belgian nationals who were born in 1960 and 1968 respectively and live in Belgium. The applicants also lodged the present application on behalf of their child, A. The Section President acceded to the request for non‑disclosure of identity by the applicants (under Rule 47 § 4 of the Rules of Court). They were represented before the Court by Ms C. Verbrouck, a lawyer practicing in Brussels.
2. The Belgian Government (“the Government”) were represented by their agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department.
3. The Ukrainian Government were represented by their agent, Ms O. Davydchuk. Written observations were also received from the European Centre for Law and Justice, which the President had authorised to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 3 a) of the Rules of Court).
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicants, a married couple, travelled to Ukraine in order to make arrangements for a surrogate pregnancy. A. was born in Ukraine from this surrogate pregnancy on 26 February 2013.
6. The applicants declared A.’s birth to the Ukrainian authorities and obtained a Ukrainian birth certificate. The first applicant was recorded as A.’s father and the second applicant as his mother. The birth certificate made no mention of the use of a surrogate mother.
7. On 15 March 2013 the applicants asked the Belgian embassy in Kyiv to issue a Belgian passport for A.
8. On 18 March 2013 the embassy informed the applicants of the refusal to issue them with a passport on the ground that they were unable to present certain documents making it possible to confirm the family relationship with the child, A., particularly a certificate of pregnancy relating to the second applicant drawn up by her physician in Belgium and a certificate of hospitalisation for the second applicant in Ukraine.
9. On 19 March 2013 the applicants, through the intermediary of their lawyer, applied to the President of the Brussels Court of First Instance, sitting as the urgent applications judge, asking him to order the Belgian authorities to issue them with a travel document so that A. could enter Belgian territory.
10. On 22 March 2013 the applicants, also through the intermediary of their lawyer, brought proceedings under Article 27 of the Code of Private International Law to secure recognition of the validity of the child’s Ukrainian birth certificate. These proceedings are still pending before the Brussels Court of First Instance.
11. On 25 March 2013 the applicants, accompanied by their child, A., attempted to board a flight with A.’s birth certificate. The airline refused to allow them to board the aircraft at Kyiv airport.
12. On 5 April 2013 the President of the Brussels Court of First Instance declared the urgent request admissible but unfounded. The judge acknowledged the urgent and provisional nature of the request, but held that the applicants’ file left many questions unanswered concerning the surrogate mother and the method of procreation used. The applicants had not submitted sufficient evidence to enable the court to accept prima facie the existence of a biological family relationship between them and the child A. As regards the mother, Belgian law established maternity on the basis of childbirth, and the second applicant was therefore unable to substantiate a family relationship with the child. As regards the father, no information had been provided on the method of procreation or the surrogacy agreement, and the results of the DNA test carried out via an Internet site had no probative value “because the origin of the samples analysed had not been certified”. The applicants appealed against that decision.
13. On 8 April 2013 the first applicant declared before a notary in Brussels that he recognised A. as his son.
14. On 25 April 2013 the applicants were obliged to return to Belgium without A. owing to the imminent expiry of their residence permit in Ukraine. They engaged a nanny to look after the child in Ukraine in their absence.
15. The applicants travelled to Ukraine as frequently as possible, in particular between 30 May and 6 June 2013 and between 11 and 18 July 2013.
16. On 31 July 2013 the Brussels Court of Appeal, ruling on an urgent application, found that the applicants had gathered a large number of further documents in addition to the file submitted at first instance. It noted that several facts seemed to confirm the first applicant’s status as the biological father, and that in the present case the recognition of the paternal relationship would apparently pose no serious threat to law and order in Belgium. Moreover, the Court of Appeal noted that the evidence on the conception and birth of A. manifestly fulfilled the conditions set out in Ukrainian law for the validity of a surrogacy agreement. The Court of Appeal took the view that there was a semblance of factual lawfulness and that balancing the interests at stake required consideration of the first applicant’s right to a family life with the child and the latter’s right to become attached to the first applicant without awaiting the outcome of the proceedings on the merits. Consequently, the Court of Appeal declared the appeal lodged by the applicants well-founded and ordered the Belgian State to issue the first applicant with a laissez-passer or any other appropriate administrative document bearing A.’s name, in order to enable A. to travel to Belgium with the first applicant.
17. The applicants travelled to Ukraine to receive the travel document on 5 August 2013.
18. On 6 August 2013 A. arrived in Belgium with the applicants. All three have been living together in Belgium since that date.
B. The relevant Belgian law and practice
19. At the present time, surrogate motherhood is not covered by any specific legislation or statute under Belgian law.
20. Recognition of authentic foreign instruments is governed by Article 27 of the Code of Private International Law, paragraph 1 of which provides:
“A foreign authentic instrument shall be recognised by any authority in Belgium without the need for any procedure if the validity is established in accordance with the law applicable by virtue of the present statute and more specifically with due regard of Articles 18 and 21.
The instrument must satisfy the conditions necessary to establish authenticity under the law of the State where it was drawn up.
To the extent that is required, Article 24 is applicable.
In the event that the authority refusing to recognise the validity of the instrument, an appeal may be lodged before the Court of First Instance without prejudice to Article 121, in accordance with the procedure set out in Article 23.”
21. As regards the establishment of a family relationship, Article 62 of that Code provides:
“§1. The establishment and contestation of the parenthood of a person are governed by the law of the State of the person’s nationality upon the birth of the child or, if the establishment results from a voluntary act, at the time such act is carried out ... .”
22. Examining cases referred under Article 27 of the Code of Private International Law, the civil courts have already had occasion to adjudicate on the recognition of birth certificates issued abroad to prospective parents having had recourse to a surrogate mother, and have sometimes acceded to the request as submitted (see, for instance, Antwerp Court, 19 December 2008 [Revue@, 2010, no. 4, p. 140], Liège Court of Appeal, 6 September 2010 [Journal des tribunaux, 2010, p. 634], Brussels Court, 15 February 2011 [Revue@, 2011, no. 1, p. 125]).
23. The civil courts have also examined urgent applications from prospective parents for travel documents of children born of surrogate mothers abroad, with a view to bringing those children to Belgium. The courts have sometimes accepted such urgent applications where it was established that the prospective father was also the child’s biological father (see, to that effect, Brussels Court [urgent procedure], 6 April 2010, Revue trimestrielle de droit familial, 2010, p. 1164).
24. At the material time the issue of passports was governed by the Law of 14 August 1974 on the issue of passports. Under section 4 of this Law, passports or other documents in lieu thereof are issued to Belgian nationals in foreign countries by Belgian diplomatic and consular staff. Section 7 provides that “where there is a doubt as to the applicant’s identity or nationality, the issue of the passport or other document in lieu thereof may be suspended until the person or the department has established his or her identity or Belgian nationality by means of documents or conclusive testimonies”.
C. Relevant extracts from Ukrainian law
25. Article 123 of the Ukrainian Family Code provides:
“If an embryo conceived by the spouses by means of assisted reproduction techniques is transferred into the body of another woman, the spouses are the parents of the future child.”
26. In order to recognise a couple as the child’s parents Ukrainian legislation requires the spouses to be married, the relevant biological materiel to have been provided by at least one of the spouses, and no biological link to exist between the embryo and the surrogate mother.
COMPLAINTS
...
28. ... relying on Article 8 of the Convention, the applicants alleged that their effective separation from A. on account of the Belgian authorities’ refusal to issue a travel document had severed the relationship between the baby, who was only a few weeks old, and his parents, which was contrary to the best interests of the child and violated the applicants’ right to respect for their family life.
...
THE LAW
...
B. Alleged violation of Article 8 of the Convention on account of the applicants’ temporary separation from A.
37. Relying on Article 8 of the Convention, the applicants alleged that the Belgian authorities’ refusal to authorise A.’s admission to Belgium had separated them from their child for several months in breach of their right to respect for private and family life. Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The Government’s submissions
38. The Government did not dispute that the situation criticised by the applicants fell within the ambit of Article 8 of the Convention. On the merits, the Government agreed that the applicants’ situation had been difficult, that it had been deleterious to the child and that the applicants must undeniably have suffered some degree of distress. However, they considered the complaint under Article 8 unfounded.
39. First of all, the Government noted that the applicants had only been effectively separated from A. for three months, interrupted by regular one‑week visits to Ukraine by the applicants.
40. Secondly, they contended that, contrary to the applicants’ allegations, A.’s birth certificate had not been valid ipso jure in Belgium because there was no agreement between Belgium and Ukraine on the issue of mutual recognition of foreign instruments. The Belgian authorities’ refusal to provide a laissez-passer for the child had therefore been legitimate because it had been a normal consequence of implementing Articles 27 and 62 of the Code of Private International Law, and also because the applicants could have appealed to the courts against that refusal.
41. Moreover, the Government took the view that the refusal by the urgent applications judge to order the issue of a travel document had been exclusively or mainly attributable to the applicants themselves because they had failed to submit documents to prove their biological family relationship with the child. As soon as the applicants had added a certificate of genetic relationship to their file, the appeal judge had acceded to their request.
42. The Government also noted that before initiating their project the applicants had contacted the Belgian and Ukrainian authorities for information on the applicable legislation in the field of surrogacy. Therefore, they had, or should have, known the applicable rules and the documentary evidence which they would have to submit to the Belgian authorities in order to secure recognition of the child’s family relationship.
43. Lastly, referring to the order issued by the urgent applications judge of the Brussels Court of First Instance on 6 April 2010 (see paragraph 23 above), the Government argued that if the applicants had submitted a complete file to the Court of First Instance it would doubtless have acceded to the applicants’ request.
2. The applicants’ submissions
44. The applicants submitted that their separation from their child, A., had been heart-rending for them. They had experienced real anguish and fear at having had to leave A. devoid of any status in Ukraine and to entrust him to an individual whom they hardly knew, and had feared that A. would be deemed abandoned and placed in an orphanage. That situation had been completely contrary to the child’s best interests.
45. The applicants therefore took the view that a family life had incontrovertibly been created consisting of close bonds between themselves and the child. They considered that the Belgian authorities’ refusal to issue a laissez-passer for the child had had no basis in legislation, had not pursued any legitimate aim and had constituted a disproportionate obstacle to their right to respect for family life. The applicants pointed out that the right to maintain family relations between parents and their children had to take precedence over the interests of the State (see Berrehab v. the Netherlands, 21 June 1988, Series A no. 138), and that in any case the best interests of the child should be the primary consideration (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010). In this context, the applicants submitted that the State’s margin of appreciation should be restricted in the present case because a particularly important facet of an individual’s existence or identity was at stake.
3. Third-party submissions
46. The European Centre for Law and Justice ( “ECLJ”) considered that surrogate pregnancy was contrary to human dignity for both the surrogate mother and the child, and that the practice should be prohibited in all the member States of the Council of Europe. The ECLJ therefore took the view that the applicants could not complain of a situation which they had themselves created in breach of Belgian law and international law. The ECLJ accordingly requested that the application be dismissed for abuse of rights in pursuance of Article 17 of the Convention.
47. In the alternative, the ECLJ considered that the present case did not involve “family life” within the meaning of Article 8 of the Convention, because the parent-child bond resulted from a circumvention of the law, as the Court had concluded in Stübing v. Germany (no. 43547/08, 12 April 2012). In refusing to issue a laissez-passer for A. before the courts had examined in depth the documents produced by the applicants, the Belgian State had pursued several legitimate aims, namely preventing the circumvention of civil status law, combating trafficking in human beings and protecting the interests of the child. The ECLJ took the view that in the light of those circumstances, a time-lapse of four months, twelve days before the Appeal Court decision could not be deemed excessive, especially since the separation had been the applicants’ fault and because they could have returned to Ukraine to live with the child.
4. The Court’s assessment
48. First of all, the Court considers it necessary to point out that the proceedings brought by the applicants under Article 27 of the Code of Private International Law in order to secure recognition of the child’s Ukrainian birth certificate (see paragraph 10 above) are not the subject of the complaints submitted to the Court by the applicants, and in any case, the aforementioned proceedings are pending before the domestic courts. The complaints submitted to the Court by the applicants exclusively concern the urgent application lodged in order to secure authorisation for A. to enter Belgian territory.
49. Secondly, the Court notes that the applicants and the Government agree on the fact that the impugned situation falls within the scope of Article 8 of the Convention (see paragraph 37 above). The Court reiterates that it has acknowledged the applicability of Article 8 where de facto family ties exist (see X, Y and Z v. the United Kingdom, 22 April 1997, §§ 36-37, Report of Judgments and Decisions 1997‑II, and Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 117, 28 June 2007). The applicants were certainly separated from their child, A., for the period in question. However, the Court reiterates that an intended family life does not fall entirely outside the ambit of Article 8 (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 143, ECHR 2004‑V [extracts]). To this effect, it has previously held that Article 8 can also extend to the potential relationship which may develop, for example, between a natural father and a child born out of wedlock (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999‑VI ), or to the relationship that arises from a lawful and genuine marriage, even if a family life has not yet been fully established (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 62, Series A no. 94). It is not disputed in the instant case that the applicants’ genuinely wished to look after A. as his parents ever since his birth and that they took action to guarantee an effective family life (see, mutatis mutandis, Todorova v. Italy, no. 33932/06, § 54, 13 January 2009). Since A.’s arrival in Belgium, all three have indeed been living together in a manner indistinguishable from “family life” in the usual meaning of the term. In the Court’s view, these considerations are sufficient to establish that Article 8 is applicable to the present case.
50. The Government did not contest the fact that the Belgian authorities’ refusal to provide a travel document for A., which led to the applicants’ effective separation from him, constituted an interference in the applicants’ right to respect for their family life. It is therefore incumbent on the Court to determine whether that interference was “in accordance with the law”, pursued one or more of the legitimate aims set out in Article 8 § 2 of the Convention, and was “necessary in a democratic society” to achieve them (see X v. Latvia [GC], no. 27853/09, § 54, ECHR 2013).
a) Legal basis
51. The Court notes that the refusal of the Belgian embassy in Ukraine to issue a passport was based on Article 7 of the Law 14 August 1974 on the issue of passports, which provided that the issue of a passport or other document in lieu thereof could be suspended as long as any doubt subsisted, particularly regarding the nationality of the person concerned. That doubt stemmed from the fact that the family relationship between the applicants and A. could not be established on the basis of the Ukrainian birth certificate, which was not recognised ipso jure in pursuance of Article 27 of the Code of Private International Law, in conjunction with Article 62 of that Code. The interference was therefore in accordance with the law within the meaning of Article 8 § 2 of the Convention.
b) Legitimate aims pursued
52. The Court notes that the Belgian authorities’ had initially refused to authorise A.’s entry into the national territory because of the need to verify whether Belgian and Ukrainian legislation had been complied with. The interference was therefore justified by the objectives of preventing criminal offences, and in particular of combating trafficking in human beings. The Court has previously acknowledged the importance and necessity of combating this phenomenon (see Rantsev v. Cyprus and Russia, no. 25965/04, § 278, ECHR 2010 [extracts]).
53. Moreover, the Court holds that the interference was also motivated by the aim of protecting the rights of others persons, in this case those of the surrogate mother and also, to some extent, of the child, A.
c) Necessary in a democratic society
54. In addition to the general principles applicable to assessing the need for an interference in the right to respect for family life reiterated by the Court in Van der Heijden v. the Netherlands [GC] (no. 42857/05, §§ 50-60, 3 April 2012), the Court points out that where there is no consensus within the member States of the Council of Europe either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (ibid., § 60).
55. In the present case, the Court notes that the applicants were separated from A. from 25 April 2013, when the applicants returned to Belgium, to 5 August 2013, when they went to fetch A. in Ukraine, that is say for three months, twelve days. This period of separation was interrupted by at least two weeklong visits to Ukraine by the applicants (see paragraph 15 above).
56. As regards the urgent application, the applicants submitted their request on 19 March 2013, the President of the Court of First Instance issued his order on 5 April 2013 and the Court of Appeal gave its judgment on 31 August 2013, four months twelve days after the beginning of the urgent application proceedings.
57. The Court does not contest the fact that that situation must have been difficult for the applicants, that they may have felt some degree of anxiety or distress and that this waiting period was not conducive to maintaining family relations between the applicants and A. The Court is aware of the importance for a child’s psychological development of sustained contact with one or more members of his or her family, particularly during the first few months of his or her life.
58. Nevertheless, having regard to the circumstances of the case, the Court takes the view that neither the urgent application procedure nor the period of effective separation between the applicants and A. can be deemed unreasonably long.
59. The Court considers that the Convention cannot require States Parties to authorise the entry into their territory of children born to a surrogate mother without prior legal verifications on the part of the national authorities.
60. Furthermore, the Court agrees with the Government that the applicants could reasonably have foreseen – if necessary by seeking out appropriate legal advice – the procedure which they would have to follow in order to obtain recognition of the family relationship and ensure that the child could come to Belgium. The Court notes in this context that the applicants were advised by one Belgian lawyer and one Ukrainian lawyer, whom they had consulted before initiating their project. Moreover, Belgian courts had already adjudicated similar cases (see paragraphs 22 and 23 above). The applicants must also have known that the procedure for applying for the documents required for obtaining a travel document for A. and processing the corresponding application would necessarily cause some delay.
61. The Court also notes that the Belgian State cannot be held responsible for the applicants’ difficulties with remaining longer in Ukraine, or indeed throughout the period during which the procedure was pending in the Belgian courts. Moreover, the Court notes that the applicants travelled regularly in order to spend time with their child, A., and that none of the authorities attempted to prevent them from doing so.
62. As to the Government’s argument that the length of proceedings was imputable to the applicants, the Court does not consider itself beholden to determine whether the applicants would in fact have been successful at first instance if they had submitted a more complete file. The Court nevertheless notes that the President of the court of first instance had accepted the urgent and provisional nature of the request but stated that he had insufficient evidence to establish prima facie the existence of a biological family relationship between the applicants and the child A. The Court therefore agrees with the Government’s contention that the delay in obtaining the laissez-passer was at least partly due to the applicants themselves.
63. In conclusion, the Court holds that the Belgian State acted within the limits of the margin of appreciation available to it in refusing – up until 31 July 2013 – to authorise the entry of the child, A., into Belgian territory.
64. Consequently, the complaint under Article 8 is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 a) and 4 of the Convention.
...
For those reasons the Court, unanimously,
...
Declares the remainder of the application inadmissible.
Stanley NaismithGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy