Information Note on the Court’s case-law 251
May 2021
Valdís Fjölnisdóttir and Others v. Iceland - 71552/17
Judgment 18.5.2021 [Section III]
Article 8
Article 8-1
Respect for family life
Non-recognition of parental link with non-biological child born abroad via surrogacy, while preserving bond through foster care:“family life” applicable ; no violation
Facts – The first and second applicants, a same sex couple, are the intended parents of the third applicant, a child born by way of gestational surrogacy in the United States and having no biological link with them. The Icelandic authorities initially refused to register the child in the national register and took legal custody of him, before placing him in the foster care of the first two applicants. After the entry into force of new legislation, the third applicant was added to the national register, but the first two applicants were not registered as his parents. The applicants appealed unsuccessfully.
Law – Article 8:
(a) Applicability of “family life”
The Court had to ascertain whether the relationship between the first two applicants and the child, the third applicant, came within the sphere of family life within the meaning of Article 8.
Unlike in the situation of Paradiso and Campanelli v. Italy [GC], the relationship between all three applicants had not been severed by decisions of the national authorities. The third applicant had been initially placed in the first and second applicants’ foster care, an arrangement which had been made permanent until their divorce in 2015. Following the divorce and until the Supreme Court delivered its judgment in 2017, a new foster care arrangement had been put in place whereby the third applicant had spent alternative years with the first and then second applicant, with equal access granted to the applicant not acting as the foster parent at that time.
The Court noted that surrogacy was unlawful in Iceland and subject to criminal liability if it took place within Icelandic jurisdiction; and that the woman who gave birth to a child was considered its mother. Under those circumstances, the ties between the three applicants had been legally uncertain at the outset, as in Paradiso and Campanelli. However, it could not be overlooked that the third applicant had been in the uninterrupted care of the first and second applicants since he had been born; upon the delivery of the final domestic judgment in 2017, the three applicants had been bonded for over four years; the third applicant’s entire life. The relationship between the first two applicants and the third applicant had thus clearly been strengthened by the passage of time, reinforced by the legally established foster care arrangement. The first and second applicants had argued that they had assumed the role of the third applicant’s parents, and that he had regarded them as such; the quality of their bond had not been contested by the Government.
In the light of the above, the requirements for the applicability of “family life” under Article 8, as laid down in Pardiso and Campanelli, had been fulfilled on the particular facts of the present case.
(b) Whether there was a violation of the right to respect for family life
The refusal to recognise the first and second applicants as the third applicant’s parents, despite the Californian birth certificate to that effect, had amounted to an interference with the three applicants’ right to respect for that family life.
There had been no explicit legal provision in Icelandic law which established a general rule on how to determine who was considered a child’s mother. However, the Supreme Court’s judgment had given detailed reasoning as to why it had considered that the general rule on maternity under Icelandic law was that the woman who gave birth to a child was considered its mother, based on legal provisions on the prohibition of surrogacy and on situations involving assisted conception treatment. Its interpretation of domestic law was neither arbitrary nor manifestly unreasonable. The interference had therefore had a sufficient basis in law.
The ban on surrogacy had served to protect the interests of women who might be pressured into surrogacy, as well as the rights of children to know their natural parents. The refusal to recognise the first and second applicants as parents had therefore pursued the legitimate aim of protecting the rights and freedoms of others.
The three applicants’ actual enjoyment of their family life had not been interrupted by an intervention by the respondent State. On the contrary, the respondent State had taken steps to ensure that the three applicants could continue to lead a family life, despite the non-recognition of a parental link and despite the first and second applicants’ divorce. Although the non-recognition had affected the applicants’ family life, the enjoyment of that family life had also been safeguarded by the foster care arrangement being rendered permanent, which had to be considered to substantially alleviate the uncertainty and anguish cited by the applicants. Additionally, the respondent State had granted the third applicant citizenship, which had had the effect of regularising and securing his stay and rights the country. Actual, practical obstacles to the enjoyment of family life created by the non-recognition of a family link therefore seemed to have been limited.
The issue before the Court had been limited to the matter of registration of a parental link, and did not encompass the issue of adoption. The Court nevertheless noted the Government’s submission that either the first or second applicant might still apply to adopt the third applicant, as individuals or together with their new spouses. Although mindful of the practical problems that might arise due to the fact that only one of those first two applicants could be permitted to adopt the child, the Court took this possibility into account in its holistic examination of the necessity of the interference, in particular as regards the Article 8 rights of the child, the third applicant.
Considering all of the above, the Court concluded that the non-recognition of a formal parental link, confirmed by the judgment of the Supreme Court, had struck a fair balance between the applicants’ right to respect for family life and the general interests which the State had sought to protect by the ban on surrogacy. The State had thus acted within the margin of appreciation afforded to it in such matters.
Conclusion: no violation (unanimously).
The Court also found, unanimously, that there had been no violation of the applicants’ right to respect for private life under Article 8, as the applicants’ arguments were in principle the same as those submitted in relation to their complaint concerning “family life” and the Court saw no reason to reach a different conclusion.
(See also Mennesson v. France, 65192/11, 26 June 2014, Legal Summary; Paradiso and Campanelli v. Italy [GC], 25358/12, 24 January 2017, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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