Communicated on 3 July 2019
SECOND SECTION
Application no. 71552/17
Valdis Glodis FJÖLNISDÓTTIR and others
against Iceland
lodged on 25 September 2017
SUBJECT MATTER OF THE CASE
The first and the second applicants are two women, married, who decided to resort to gestational surrogacy in order to become parents. On 14 February 2013 the third applicant, hereafter “the boy”, was born to a surrogate mother in California. There, the first and second applicants were registered as intended parents to the boy and a birth certificate to that effect was issued. Having entered Iceland three weeks later, the first and second applicants requested that they be recognised as parents, and that the boy be registered as an Icelandic citizen.
Their request was refused by the Registers Office on 18 June 2013 since the legal provisions on parentage did not apply to children born via surrogacy. Thus, the boy did not have an automatic right to Icelandic citizenship based on his parentage. On appeal, on 27 March 2014 the decision was upheld by the Ministry of the Interior.
The applicants cohabited. On 26 September 2013, the boy was taken into public care and officially placed with the first and second applicants as foster parents.
By the entry into force of Act No. 128/2015 on the Granting of Citizenship, the boy was granted Icelandic citizenship.
At some unknown time the first and second applicants applied to adopt the boy. The application was suspended, it appears because they divorced in May 2015. By decision of 9 December 2015 the boy was placed in foster care with the first applicant and her new partner. The second applicant was granted equal contact rights.
On 29 June 2015, the applicants brought the Ministry of the Interior’s refusal before the District Court of Reykjavik relying, inter alia, on Article 8 of the Convention and Article 65 of the Icelandic Constitution concerning equal treatment. In respect of the latter, they referred to a case concerning a different-sex couple and their children born of traditional surrogacy, in which the Registers Office had recognised the biological father and the District Court, subsequently in a judgment of 2 July 2015, had recognised parentage of the mother.
In the applicants’ case the District Court of Reykjavik found against them in a judgment of 2 March 2016, upheld on appeal by the Supreme Court on 30 March 2017.
The applicants complain that the non-recognition of the first two applicants as the parents of the boy and the non-acceptance of the boy’s birth certificate violate their rights under Article 8. The applicants furthermore complain that this non-recognition violates Article 14. They refer to other ‘known instances’ of recognition of parentage of intended parents established via surrogacy, including a judgment of the Supreme Court of Iceland of 17 March 2017.
QUESTIONS TO THE PARTIES
1. In a situation where a child is born abroad through a traditional surrogacy arrangement and there is a biological tie between one of the intended parents and the child, does Icelandic law provide a possibility for recognition of a legal parent-child relationship in respect of the intended parents (regardless of gender) and the child (see Advisory Opinion No. P16‑2018-001 [GC], 10 April 2019)?
2. In a situation where a child is born abroad through a gestational surrogacy arrangement and there is no biological tie between the intended parents and the child, does Icelandic law provide a possibility for recognition of a legal parent-child relationship in respect of the intended parents (regardless of gender) and the child, for example via adoption?
3. Did the refusal by the Icelandic authorities to recognise the legal parent-child relationship lawfully established abroad between the first two applicants and the third applicant, born abroad as the result of a surrogacy agreement, constitute an interference with the applicants’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention (see, inter alia, mutatis mutandis, Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24 January 2017; Mennesson v. France, no. 65192/11, ECHR 2014 (extracts); Labassee v. France, no. 65941/11, 26 June 2014; and D. and Others v. Belgium (dec.), no. 29176/13, 8 July 2014)?
4. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
5. Was the Supreme Court’s judgment of 17 March 2017 in breach of the applicants’ right under Article 14 of the Convention read in conjunction with Article 8 of the Convention?
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