...

THE FA C T S

1. The applicants , M r D. and M s R., are Belgian nationals who were born i n 1960 and 1968 respectively and live in Belgium . The applic ants also lodged the present application on behalf of the ir child , A. Th e Section President acceded to the request for non ‑ di sclosure of identity by the applic ants ( under Rule 47 § 4 of the Rules of Court ). They were represented before the Court by M s C. Verbrouck, a lawyer practicing in Brussels .

2. The Belgian Government ( “the Government”) were represented by their agent, M r M. Tysebaert, Senior Adviser , Federal Justice Department .

3. The Ukrainian Government were represented by their agent, M s 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 ca se, as submitted by the parties, may be summarised as follows .

5. The applic ants, 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 applic ant 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 e mbass y informed the applicants of the refus al 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. , particular ly a certificate of pregnancy relating to the second applicant drawn up by her physician in Belgium and a certificate of hospitalisation f o r the second applicant in Ukraine.

9. On 19 March 2013 the applic ants, 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 Belgi an territory .

10. On 22 March 2013 the applic ants, also through the intermediary of their lawyer , brought proceedings under Article 27 of the Code of Private International Law to secure recogni tion 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 applic ants , 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 K y iv airport .

12. On 5 April 2013 the President of the Brussels Court of First Instance declared the urgent request admissi ble but unfounded . The judge acknowledged the urgen t and provisional nature of the request, but held that the applic ants ’ 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. A s 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 “ becau se the origin of the samples analysed had no t been certified”. The applic ants appe a l ed against that decision .

13. On 8 April 2013 the first applic ant declared before a notary in Brussels that he recognised A. as his son .

14. On 25 April 2013 the applic ants 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 applic ants 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 pa te rn al relationship woul d appare ntly pose no serious threat to law and order in Belgium . Moreover , the Court of A ppe a l noted that the evidence on the conception and birth of A. manifes tly 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 applic ant ’ s right to a family l if e with the child and the latter ’ s right to be come attache d to the first applic ant 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 applic ants 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 , su rrogate motherhood is not covered by any specific legislation o r statute under Belgian law .

20. Recognition of authenti c foreign instruments is governed by A rticle 27 of the C ode of Private I nternational 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 du e regard of A rticles 18 and 21.

The instrument must satisfy the conditions necessary to establish authenticity under the law of t he 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 A rticle 23 . ”

21. As regards the establishment of a family relationship , A rticle 62 of that C ode 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 [ [email protected] , 2010, n o. 4, p. 140 ] , Liège Court o f Appeal , 6 September 2010 [ Journal des tribunaux , 2010, p. 634 ] , Brussels Court, 15 February 2011 [ [email protected] , 2011, n o. 1, p. 125] ).

23. The civil court s have also examined urgent applications from prospective parents for travel documents of children born of surrogate mothers abroad, with a view to brin g ing 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 biologi cal 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 o r other documents in lieu thereof are issued to Belg ian national s 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 C ode 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 th e spouses t o be married , the relevant biological materiel to have be en provided by at least one of the spouses , and no biologi cal link to exist between the embryo and the surrogate mother .

COMPLAINTS

...

28. ... relying on A rticle 8 of the Convention, the applic ants alleged that their effective separation from A. on account of the Belgian authorities ’ ref usal to issue a travel document had severed the relationship between th e 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 A rticle 8 of the Convention on account of the applicants ’ temporary separation from A.

37. Relying on A rticle 8 of the Convention, the applic ants 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 priv at e and family l if e. A rticle 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 disput e that the situation criticised by the applic ants fell within the ambit of A rticle 8 of the Convention. On the merits , the Government a greed that the applicants ’ situation had been difficult , that it had been deleterious to the child and that the applic ants must undeniably have suffered some degree of distress . However, they consider ed the complaint under A rticle 8 unfounded .

39. First of all , the Government note d that the applic ants had only been effectively separated from A. for three months, interrupted by regular one ‑ week visits to Ukraine by the applicants .

40. S econdly , the y contended that , contrary to the applic ants ’ allegations , A. ’ s birth certificate had not been val id 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 implement ing A rticles 27 and 62 of the C ode of Private I nternational Law, and also because the applic ants could have appealed to the courts against that refus al .

41. Moreover , the Government too k the view that the refusal by the urgent applications judge to ord er the issue of a travel document had been exclusive ly or ma inly attrib utable to the applic ants themselves because they had failed to submit documents to prove their biologi cal family relationship with the child . As soon as the applic ants had added a certificate of genetic relationship to their file , the appe a l judge had acceded to their request .

42. Th e Government also noted that before initiating their project the applic ants 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 document ary 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 ord er 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 applic ants had submitted a complete file to the Court of First I nstance it would doubtless have acceded to the applic ants ’ request .

2. The applic ants ’ submissions

44. The applicants submitted that their separation from their child, A. , had been heart- rend ing 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 i n 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 disproportion ate obstacle to their right to respect for family l if e. 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 applic ants submitt ed 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. T hird-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 th e practice should be prohibited in all the member State s of the Council of Europe. The ECLJ therefore took the view that the applic ants could not com plain 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 f or abuse of rights in pursuance of A rticle 17 of the Convention.

47. In the alternative , the ECLJ considered that the present case did not involve “family l if e ” within the meaning of A rticle 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 (n o. 43547/08 , 12 April 2012) . In refusing to issue a laissez-passer f or A. before the courts had examined in depth the documents produced by the applic ants, the Belgian State had pursued several legitimate aim s , namely prevent ing the circumvention of civil status law , combating tra ff i cking in human being s and protecti ng the interests of the child . The ECLJ took the view that in the light of those circumstances , a time-lapse of four mo nths, twelve days before the A ppe a l Court decision could not be deem ed excessive , e specially since the separation had been the applic ants ’ 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 applic ants under A rticle 27 of the Code of Private International Law in order to secure recognition of the child ’ s Ukrainian birth certificate ( see paragraph 10 above ) a re not the subject of the complaints submitted to the Court by the applicants , and i n any case , the aforementioned proceedings are pending before the domestic courts . The complaints submitted to the Court by the applic ants exclusively concern the urgent application lodged in order to secure authorisation f or A. to enter Belgian territory .

50. Th e Government d id 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 l if e. I t is therefore incumbent on the Court to determine whethe r that interference was “ in accordance with the l aw ” , pursued one or more of the legitimate aim s set out in A rticle 8 § 2 of the Convention , and was “ necessary in a democratic society ” to a chieve them ( see X v . Latvia [GC] , n o. 27853/09 , § 54, E CH R 2013) .

a) Legal b as is

51. The Court notes that the refus al of the Belgian e mbass y in Ukraine to issue a passport was based on A rticle 7 of the Law 14 August 1974 on the issue of passports , which provided that the issue of a passport o r other document in lieu thereof could be suspend ed a s long as any dou b t subsisted , particularly regarding the nationality of the person concerned . That dou b t stemmed from the fact that the f amily relat ion ship between the applic ants and A. could not be established on the bas is of the Ukrainian birth certificate , which was not recognised ipso jure in pursuance of A rticle 27 of the C ode of Private I nternational Law , in co njunction with A rticle 62 of that C ode. The interference was therefore in accordance with the law within the meaning of A rticle 8 § 2 of the Convention.

b) Legitimate aim s 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 wheth er 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 tra fficking in human being s. The Court has previously acknowledged the importance and necessity of combating this phenomenon ( see Rantsev v . Cyprus and Russia , n o. 25965/04, § 278, E CH R 2010 [ extracts ] ).

53. Moreover , the Court holds that the interference was also motiv ated by the aim of protecting the righ ts 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. I n addition to the general principles applicable to assessing the need for an interference in the right to respect for family l if e reiterated by the Court in Van der Heijden v . the Netherlands [GC] (n o. 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 note s that the applic ants were separated from A. from 25 April 2013, when the applic ants 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 applic ants ( see paragraph 15 above ).

56. As regards the urgent application , the applic ants submitted their request on 19 March 2013, the President of the Court of First I nstance issued his ord er on 5 April 2013 and the Court of A ppe a l 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 f or the applic ants, 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 applic ants and A. The Court i s aware o f the importance f or a child ’ s psychologi cal development of sustained contact with one or more members of hi s 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 applic ants and A. can be deemed unreasonably long.

59. The Court considers that the Convention cannot require S tat e s P arties to authorise the entr y 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 applic ants could reasonably have foreseen – if necessary by seeking out appropriate legal advice – the procedure which they would have to f ollow 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 applic ants were advised by one Belgian lawyer and one Ukrainian lawyer, whom they had consulted before initiat ing their project. Moreover, Belgian court s had already adjudicated similar cases ( see paragraphs 22 and 23 above ). The applic ants must also have known that the procedure for applying for the documents required for obtaining a travel document f or A. and processing the corresponding application would necessarily cause some delay .

61. The Court also notes that the Belgian S tat e cannot be held responsible for the applic ants ’ difficulties with remaining longer in Ukraine, or indeed throughout the period during which the procedure was pending in the Belgian court s. Moreover, the Court notes that the applic ants 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 applic ants, the Court does not consider itself beholden to determine whether the applic ants 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 applic ants themselves .

63. In conclusion, the Court holds that the Belgian S tat e acted within the limits of the marg in 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 , unanim ously ,

...

Declares the remainder of the application inadmissi ble.

             Stanley Naismith Guido Raimondi Registrar President