CYIL vol. 11 (2020)
CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS a fundamental way. According to the Court, such a situation generates serious questions concerning conformity with the best interest of the child, which should, however, be followed by each decision relating to the child. If one of the parents is also a biological parent of the children, as it is the case in the matter dealt with, then it is, in the Court’s opinion, in contradiction with the best interest of the child, if such a parent is denied legal recognition of the relationship, although biological relationship is evidenced and the parent and the child try to achieve its legal recognition .” 36 Besides, the ECtHR was dealing with the issues of surrogacy also in the case Labassee v. France 37 , which concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment. In both the cases (Mennesson as well as Labassee), the ECtHR decided that in both the cases there had been no violation of Article 8 of the Convention as regards the applicants’ right to respect for their family life, and that there had been a violation of Article 8 as regards the right to respect for private life of the children concerned. In addition, the ECtHR was deciding in the issues of surrogacy in the case Foulon and Bouvet v. France 38 and has delivered a judgment protecting the rights of children born as a result of international commercial surrogacy to have their relationships with their biological parents legally recognised. The Court unanimously found that refusal by French authorities to transcribe the birth certificates of children born under surrogacy agreements in India violated the children’s right to respect for private life under Article 8 of the European Convention on Human Rights . The judgment resolves past uncertainty as to whether the Court’s earlier decisions on surrogacy would extend to same-sex families. In the case of Laborie v. France 39 , D. and Others v. Belgium 40 , C and E v. France 41 , or in all these cases, respectively, the applicants relied on Article 8 of the Convention to challenge administrative decisions in their home states refusing to legally recognise parent- child relationships established abroad between children born as a result of surrogacy. In a similar spirit, a case was decided also in the Czech Republic, even before the Constitutional Court which decided in this matter on 29 June 2017 through the finding - file ref. no. I. ÚS 3226/16 . The factual basis of this case was that the applicants, both men, were living in the same household, and pursuant to the laws of the State of California they were spouses. One of the applicants was a national of the Czech Republic, while the other one was a national of Denmark, and they were living in California, but they were travelling to the Czech Republic to visit relatives. These spouses became parents of a child in California on the basis of a surrogate agreement when the egg originated from an anonymous female donor and sperm was from both the applicants who did not know and even did not want to know which of them is the child’s father and they were registered as parents in the child’s certificate of birth in California. The applicants subsequently asked the Prague 1 City District Authority 36 It is necessary to remember that in the above-mentioned cases the legislations of both Italy and France expressly prohibit surrogacy, and therefore the decision making about a similar case in our legal environment could obviously be fully different. 37 Case of Labassee v. France , App. No. 65941/11. 38 Case of Foulon and Bouvet v France (Application Nos. 9063/14 and 10410/14).
39 Case Laborie v. France ( Application No. 44024/13). 40 Case Others v. Belgium (Application No. 29176/13). 41 C and E v. France (Applications Nos. 1462/18 and 17348/18).
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