AS TO THE ADMISSIBILITY OF
Application No. 16944/90
by J.R.M.
against the Netherlands
The European Commission of Human Rights sitting in private on 8
February 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 July 1990 by
J.R.M. against the Netherlands and registered on 31 July 1990 under
file No. 16944/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1948, and resides
Utrecht, the Netherlands. Before the Commission he is represented by
J.C. van Oven, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1985 the applicant and his then wife met Mrs. T. and Mrs. J.,
a lesbian couple. Mrs. T. and Mrs. J. expressed the wish that they
would like to have and raise a child, not by an anonymous sperm donor,
but by a known donor. They considered it important for a child to know
its father. After some conversations Mrs. T. and Mrs. J. and the
applicant agreed that the latter would be the sperm donor. In November
1986 Mrs. T. was artificially inseminated and on 30 July 1987 a
daughter was born. Mrs. T. is the child's guardian by law.
By judicial order of 27 August 1987 the District Court judge
(kantonrechter) of Utrecht appointed Mrs. J. as co-guardian.
During Mrs. T.'s pregnancy and after the child's birth the
applicant visited Mrs. T. and Mrs. J. regularly and between September
1987 and April 1988 baby-sat on Monday afternoons.
In the beginning of 1988 the applicant informed Mrs. T. and Mrs.
J., referring to alleged previous agreements on the raising of the
child, that he wished to establish certain visiting arrangements, inter
alia, that the child would spend one weekend per month with him. Mrs.
T. and Mrs. J. denied that any previous agreements in this respect had
been made in the past and in May 1988 broke off all contacts with the
applicant and refused further contacts between the applicant and the
child.
On 30 June 1988 the applicant requested the Juvenile Court judge
(kinderrechter) to determine an arrangement concerning his access to
the child (omgangsregeling).
By interlocutory decision of 8 November 1988 the Juvenile Court
judge declared the applicant's request admissible. The judge
considered, inter alia, that the applicant's donorship in itself is an
insufficient basis for the creation of family life within the meaning
of Article 8 of the Convention and that agreements on rights and duties
concerning a child are null and void, but concluded that the
applicant's request was admissible on the basis of the combination of
the applicant's donorship and his weekly contacts with the child over
a period of eight months.
By decision of 14 December 1988 the Juvenile Court judge refused
the applicant's request for access, considering that, in view of the
fundamental differences of opinion between the applicant on the one
hand and Mrs. T. and Mrs. J. on the other, such access would be
contrary to the child's interests.
Following an appeal by Mrs. T. and Mrs. J. against the decisions
of 8 November 1988 and 14 December 1988 and the applicant's appeal
against the decision of 14 December 1988 the Court of Appeal
(Gerechtshof) of Amsterdam on 17 April 1989 quashed both decisions of
the Juvenile Court judge and declared inadmissible the applicant's
request to have access to the child.
The Court of Appeal first noted that the parties did not
challenge the Juvenile Court judge's findings that agreements
concerning a child are null and void and that donorship in combination
with agreements on a child born out of donorship cannot lead to the
admissibility of a donor's request to be awarded access to such a
child. In respect of the existence of family life within the meaning
of Article 8 of the Convention between the applicant and the child, the
Court of Appeal held there is no family life between them. The Court
considered in particular that as the applicant's actual contacts with
the child were of such a summary character, it could not be concluded,
on the basis of these contacts, also in combination with his donorship,
that the applicant is or was so close to the child that he has a family
life with the child within the meaning of Article 8 of the Convention.
The applicant's subsequent appeal in cassation was rejected by
the Supreme Court (Hoge Raad) on 26 January 1990. The Supreme Court
rejected the applicant's argument that there is always "family life"
between a biological father, including a father through donorship, and
his child. In the Supreme Court's opinion "family life" requires,
apart from biological fatherhood, the existence of additional
circumstances. The Supreme Court added that the Court of Appeal's
opinion, that "as the applicant's actual contacts with the child were
of such a summary character, it could not be concluded, on the basis
of these contacts, also in combination with his donorship, that the
applicant is or was so close to the child that he has a family life
with the child within the meaning of Article 8 of the Convention", is
an appreciation of fact which is left to this court's competence. The
Supreme Court did not consider this appreciation to be legally
incorrect.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
the Dutch authorities unjustly considered there is no family life
between him and his child. In his opinion family life exists "ipso
iure" between a biological parent, including a parent through
donorship, and his child. Even if this would not be the case there is,
according to the applicant, family life between him and the child on
the basis of the actual contacts he had with the child and which could
not be continued as Mrs. T. and Mrs. J. did not allow them anymore.
2. The applicant further complains that his rights under Article 13
in conjunction with Article 6 para. 1 of the Convention have been
violated as the Dutch courts refused to declare his request for access
admissible in proceedings in which he wished to invoke his and the
child's rights as guaranteed by Article 8 of the Convention.
3. The applicant finally complains under Article 14 in conjunction
with Article 8 of the Convention that the Dutch authorities have
discriminated against him by declaring his request to have access to
the child inadmissible, whereas a similar request by a father of a
legitimate child would, in his opinion, undoubtedly be declared
admissible, even when there has been little or no contact at all
between such a parent and his child.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that the Dutch authorities unjustly concluded that there is
no family life between him, in his capacity as a sperm donor, and a
child born out of this donorship.
Article 8 para. 1 (Art. 8-1) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence."
The Commission recalls it has previously held that "family life"
in the sense of Article 8 (Art. 8) of the Convention implies close
personal ties in addition to parenthood (No. 11468/85, Dec. 15.10.86,
D.R. 50 p.199). The Commission further recalls that the existence or
non-existence of family life will depend on a number of factors, of
which cohabitation is only one, and on the circumstances of each
particular case (cf. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224).
The Commission notes that the applicant agreed to be a sperm
donor in order to satisfy the desire of Mrs. T and Mrs. J. to have and
raise a child together. The Commission further notes that the
applicant agreed that Mrs. T. and Mrs. J. would raise the child
together and that the custody of the child would be vested in them.
The Commission finally notes that there have been certain contacts
between the applicant and the child on a regular basis during the first
months after the child's birth and that these contacts ended in May
1988, following Mrs. T and Mrs. J.'s refusal of the applicant's wish
to establish certain visiting rights and subsequently and of any
further contacts between the applicant and the child.
The Commission considers that the situation in which a person
donates sperm only to enable a woman to become pregnant through
artificial insemination does not of itself give the donor a right to
respect for family life with the child.
As to the applicant's argument that there is family life between
him and the child as there have been regular contacts between them for
a period of several months after the child's birth, the Commission
notes that these contacts were limited in time and intensity.
Furthermore the applicant has apparently not considered to make any
contribution, financially or otherwise, to the child's upbringing. The
Commission is of the opinion that the applicant's contacts with the
child, both in itself and together with his donorship, form an
insufficient basis for the conclusion that as a result thereof such
close personal tie has developed between them that their relationship
falls within the scope of "family life" as referred to in Article 8
(Art. 8) of the Convention and, therefore, considers that the decision
by the Dutch authorities on the applicant's request for access does not
amount to a lack of respect for the applicant's family life.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains under Article 13 in conjunction with
Article 6 para. 1 and Article 8 (Art. 13+6-1+8) of the Convention that
the Dutch courts refused to declare his request to have access to the
child admissible.
Article 13 (Art. 13) provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls that an applicant who has an arguable
claim that his rights guaranteed by the Convention have been violated
must have an effective remedy before a national authority for that
claim. The word "remedy" in this sense does not mean that the
applicant's claim must be vindicated and that the applicant must "win".
He must have an opportunity to have his claim examined by a national
authority conforming to the requirements of Article 13 (Art. 13), which
is able to examine the merits of his complaint (No. 10496/83, Dec.
14.5.84, D.R. 38 p. 189).
The Commission notes that the applicant made use of the legal
means at his disposal by submitting his request to the Juvenile Court
judge, the Court of Appeal and the Supreme Court respectively.
The Commission is of the opinion that these remedies meet the
requirements of Article 13 (Art. 13) of the Convention.
It follows that also this complaint is manifestly ill-founded and
must be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains under Article 14 of Convention
in conjunction with Article 8 (Art. 14+8) of the Convention that the
decision by the Dutch courts to declare his request inadmissible
discriminated against him in comparison with a father of a legitimate
child.
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission notes that the applicant seeks to compare himself
with a father of a legitimate child. In view of the fundamental
differences between the applicant and a father of a legitimate child,
the Commission does not find that these two situations can be compared
and considered as being analogous and, therefore, no question of
discrimination arises in the present case (cf. Eur. Court H.R. Van der
Mussele judgment of 23 November 1983, Series A no. 70, para. 46).
It follows that also this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy