FOURTH SECTION

DECISION

Application no. 32185/20 H against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 31 May 2022 as a Chamber composed of:

Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Pere Pastor Vilanova, Jolien Schukking, Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above application lodged on 22 July 2020,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the International Coalition for the Abolition of Surrogate Motherhood and Stonewall Equality Limited ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, H, is a British national who was born in 2016 and lives in London. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She is represented before the Court by Mr C.J. Rogerson, a lawyer practising in London, formerly with Dawson Cornwell and now with BLM.

2. The Government of the United Kingdom (“the Government”) are represented by their Agent, Mr M. Boulton of the Foreign, Commonwealth and Development Office.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant was born pursuant to a surrogacy arrangement. In 2015 A and B, who are same sex partners, entered into a surrogacy arrangement with a married couple, C and D. C subsequently became pregnant using donated eggs and sperm from both A and B. A DNA test has since confirmed that A is the applicant’s genetic father.

5 . Before the applicant was born there was a breakdown in relations between A and B, on the one hand, and C and D, on the other. As a consequence, C and D did not initially inform A and B of the applicant’s birth. A and B subsequently commenced proceedings in the family courts and on 13 December 2016 a judge ordered that A and B, as well as C and D, should have parental responsibility for the applicant. She also made a child arrangements order declaring that the applicant should live with A and B; that A and B should make all of the day to day decisions in respect of the applicant, as well as decisions concerning her education, medical treatment and “all other parenting decisions”; that the applicant’s name should be changed to incorporate the surnames of A and B ; and that C and D should have regular contact with her throughout the year. The Court of Appeal subsequently dismissed C and D’s appeal against that decision.

6 . Pursuant to the order, the applicant now lives with A and B although she also has an ongoing relationship with C and D and their wider extended family.

7. According to the applicant’s birth certificate C and D are her “mother” and “father”.

8. Sections 33 and 35 of the Human Fertilisation and Embryology Act 2008 (“the HFEA”) (see paragraph 24 below) provides that in cases of assisted reproduction the woman who carried the child (in this case, C) is to be treated as the child’s mother; and if the mother is married, her husband (in this case, D) is to be treated as the father unless it is shown that he did not consent to the procedure. Section 38(1) of the HFEA (see paragraph 24 below) further provides that where a person is to be treated as the father of the child by virtue of section 35 or 36, no other person is to be treated as the father of the child. Pursuant to section 54 of the HFEA (see paragraph 25 below), where the child was born pursuant to a surrogacy arrangement using the gametes of the intended parent or one of the intended parents, the intended parent(s) may apply for a parental order so as to become the lawful parent(s) of the child. Once a parental order is made, the birth will be re-registered to record the intended parent(s) as the legal parent(s). A certificate from the Parental Order Register will be issued for the child, which is materially similar to a long-form birth certificate. However, according to section 54 of the HFEA the parental order can only be made with the unconditional agreement of the woman who carried the child and the man who is the father by virtue of section 35 or 36 of HFEA (see paragraphs 24-25 below).

9 . A and B did not seek a parental order as C and D did not consent.

10. On 1 May 2018 the applicant, through B, acting as her litigation friend, sent a letter before claim to the Secretary of State for Health and Social Care alleging that her right to respect for her private life under Article 8 of the Convention was being infringed and seeking a concession that sections 35 and 38 of HFEA were incompatible with that Convention Article. The defendant responded, submitting that there had been no breach of her Convention rights as her relationship with A had been recognised in law by the family court through the grant of a child arrangements order (see paragraph 5 above).

11. On 16 October 2018 the applicant, again through B, acting as her litigation friend, sought permission to apply for judicial review. In particular, she sought a declaration of incompatibility in respect of sections 35 and 38 of HFEA and a declaration that those sections breached her human rights.

12. Regarding her own personal circumstances, it was submitted that she was denied the social and emotional benefits of having legal recognition of her biological father and her day to day reality. Although A and B had parental responsibility, this lacked the quality of long-term certainty that legal parenthood had and, unlike legal parenthood, it would come to an end when she was eighteen. It was further argued that she was precluded from obtaining Brazilian citizenship as of right (A being a Brazilian citizen), and that she could be disadvantaged financially by the operation of inheritance law. As such, the legislation had not struck a fair balance between the competing interests at stake.

13. The defendant filed two witness statements from the Deputy Director of the Health Ethics branch of the Department of Health and Social Care setting out a detailed history of the evolution of the policy and statutes in the field of assisted procreation.

14 . According to the High Court judge, it was apparent that there had been “very careful consideration of the moral, ethical and legal implications of surrogacy and the balances to be struck in respect of those various considerations”. The overarching concern was to prevent the commodification of surrogacy, and the key policy drivers were identified as follows. First of all, there was the desire to provide certainty for parents, gamete or embryo donors and especially children, and to ensure that gamete donors did not automatically become legal parents. Secondly, there was the need to regulate assisted procreation so that it was not misused. Thirdly, there was the desire to enshrine the principle that while surrogacy agreements were lawful in the United Kingdom, subject to certain restrictions, they were not enforceable.

15. The High Court judge analysed in detail the Court’s case-law. In her view, however, surrogacy was an issue upon which there was no European consensus, and one which raised significant moral and ethical issues. Both of these factors militated in favour of a wide margin of appreciation. Although the judge recognised that the margin of appreciation between the supranational Court and the member States was not the same as that between the national courts and the Executive or Legislature, she considered the same factors to be relevant to both and as a result believed she should be “very cautious” before deciding that a provision, which was enacted by Parliament and which was both rational and within the margin of appreciation accorded by the Court, infringed a Convention right. This was particularly so where the statutory scheme had been subject to a detailed process of consultation and consideration; in such cases, bright line rules rather than individual discretionary decisions could be proportionate (the High Court judge referred, in this respect, to Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013 (extracts)).

16 . The judge concluded that sections 35 and 38 of the HFEA were not incompatible with the applicant’s Article 8 rights. She accepted that the operation of those provisions interfered with her right to respect for her private life, as genetic or biological inheritance was an important facet of any individual’s personal identity, but she considered the interference to be relatively limited. In reality the applicant would know and understand her heritage because A and B could explain it to her; there was no evidence of any harm to her from not being a Brazilian citizen; and the suggestion of any impact on her inheritance rights was speculative and in any event could be overcome by way of testamentary provision. The judge observed that the balances struck by the legislature protected the best interests of children. Moreover, the scheme had been carefully considered through two pre ‑ legislative processes which involved a report by the Committee of inquiry into Human Fertilisation and Embryology (named “the Warnock Report” after the chair of the committee – see paragraph 21 below), White Papers and two rounds of extensive consultation. The most recent consideration of the law had been in 2008 and the issues raised by the applicant had not changed fundamentally since then. Moreover, the specific issue raised in this case, whether a genetic father could be registered on the birth certificate in place of a surrogate’s husband, had been raised by Parliament in 2008 by way of a proposed amendment which was subsequently withdrawn (see paragraph 27 below). The judge therefore considered it appropriate to afford Parliament a very wide area of discretionary judgment.

17. As for the Court’s case-law, the judge found there to be “critical distinctions” between the respondent State’s statutory scheme and the French scheme which was considered in Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)). What led to the breach of Article 8 in Mennesson was the absolute inability of the children to have their genetic father accorded legal status. In the United Kingdom, section 54 of the HFEA provided an effective mechanism to enable the genetic father to establish legal parenthood. The only reason the applicant in the present case could not rely on section 54 was because C and D did not consent, but she had not sought to argue that section 54 was incompatible with the Convention. The judge continued:

“In any event, for reasons that I will expand upon below a requirement for consent does not appear to me to be disproportionate. There is nothing in Mennesson that would suggest that a provision such as s.54 would not provide the ‘de facto enjoyment of civil status’, as referred to in [paragraph 100] of the judgment, which would be sufficient to meet any alleged article 8 breach.

This conclusion is reinforced by the Advisory Opinion [ Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], no. P16 ‑ 2018 ‑ 001] which at [paragraph 51] states that the choice of means of recognition is for the signatory State, and at [paragraph 54] states that the requirement is that ‘an effective mechanism should exist enabling that relationship to recognised’. Such an effective mechanism does exist in the HFEA, albeit subject to consent.”

18. The judge therefore concluded that the interference with the applicant’s Article 8 rights was justified.

19. The applicant applied for permission to appeal. In particular, she argued that the High Court judge, in recognising the need for legal certainty as a justification for sections 35 and 38, had failed to attach appropriate weight to the fact that the naming of A on her birth certificate would accurately reflect the factual situation for all parties. She further argued that the judge had been wrong both to afford A the limited status of “gamete donor” when he was in fact the intended father, and in her understanding that the objective of not naming a genetic father on the birth certificate was to prevent any tipping of the balance towards a more enforceable position for the intended parents.

20. On 25 October 2019 the application for permission to appeal was refused as the Court of Appeal considered that an appeal would have no real prospect of success.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

21 . In July 1982 a Committee chaired by Dame Mary Warnock was established to examine the social, ethical and legal implications of recent and potential developments in the field of human assisted reproduction. The Committee’s report was published in June 1984 and in respect of surrogacy it reached the following conclusions:

“8.17 The question of surrogacy presented us with some of the most difficult problems we encountered. The evidence submitted to us contained a range of strongly held views and this was reflected in our own views. The moral and social objections to surrogacy have weighed heavily with us. In the first place we are all agreed that surrogacy for convenience alone, that is, where a woman is physically capable of bearing a child but does not wish to undergo pregnancy, is totally ethically unacceptable. Even in compelling medical circumstances the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits, in almost every case. That people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection. Such treatment of one person by another becomes positively exploitative when financial interests are involved. It is therefore with the commercial exploitation of surrogacy that we have been primarily, but by no means exclusively, concerned.

8.18 We have considered whether the criminal law should have any part to play in the control of surrogacy and have concluded that it should. We recognise that there is a serious risk of commercial exploitation of surrogacy and that this would be difficult to prevent without the assistance of the criminal law. We have considered whether a limited, non-profit making surrogacy service, subject to licensing and inspection, could have any useful part to play but the majority agreed that the existence of such a service would in itself encourage the growth of surrogacy. We recommend that legislation be introduced to render criminal the creation or the operation in the United Kingdom of agencies whose purposes include the recruitment of women for surrogate pregnancy or making arrangements for individuals or couples who wish to utilise the services of a carrying mother; such legislation should be wide enough to include both profit and non ‑ profit making organisations. We further recommend that the legislation be sufficiently wide to render criminally liable the actions of professionals and others who knowingly assist in the establishment of a surrogate pregnancy.

8.19 We do not envisage that this legislation would render private persons entering into surrogacy arrangements liable to criminal prosecution, as we are anxious to avoid children being born to mothers subject to the taint of criminality. We nonetheless recognise that there will continue to be privately arranged surrogacy agreements. While we consider that most, if not all, surrogacy arrangements would be legally unenforceable in any of their terms, we feel that the position should be put beyond any possible doubt in law. We recommend that it be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the courts.

8.20 We are conscious that surrogacy like egg and embryo donation may raise the question as to whether the genetic or the carrying mother is the true mother. Our recommendations in 6.8 and 7.6 cover cases where eggs or embryos have been donated. There remains however the possible case where the egg or embryo has not been donated but has been provided by the commissioning mother or parents with the intention that they should bring up the resultant child. If our recommendation in 8.18 is accepted, such cases are unlikely to occur because of the probability that the practitioner administering the treatment would be committing an offence. However, for the avoidance of doubt, we consider that the legislation proposed in 6.8 and 7.6 should be sufficiently widely drawn to cover any such case. If experience shows that this gives rise to an injustice for children who live with their genetic mother rather than the mother who bore them then in our view the remedy is to make the adoption laws more flexible so as to enable the genetic mother to adopt.”

22. Section 2 of the SAA criminalised the initiation of and participation in the negotiation of surrogacy arrangements by third parties on a commercial basis. Section 3 of the SAA further criminalised the publication of advertisements offering to enter into, or facilitate the making of, a surrogacy arrangement.

23. Pursuant to section 1A of SAA, surrogacy arrangements were not enforceable by or against any party to such an arrangement.

24 . Section 3 of the Children’s Act defines “parental responsibility” as meaning “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. It also includes the rights, powers and duties which a guardian of the child’s estate would have had in relation to the child and his property.

25 . In respect of parenthood in cases involving assisted reproduction, the HFEA provided, in so far as is relevant:

“33(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.

...

35(1) If—

(a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage with a man, and

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).

...

38(1) Where a person is to be treated as the father of the child by virtue of section 35 or 36, no other person is to be treated as the father of the child.

(2) In England and Wales and Northern Ireland, sections 35 and 36 do not affect any presumption, applying by virtue of the rules of common law, that a child is the legitimate child of the parties to a marriage.”

26 . Section 54 allowed for the making of parental orders where the child was born pursuant to a surrogacy arrangement using the gametes of one of the intended parties . It provided as follows:

“(1) On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c) the conditions in subsections (2) to (8) are satisfied.

(2) The applicants must be—

(a) husband and wife,

(b) civil partners of each other, or

(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

(4) At the time of the application and the making of the order—

(a) the child’s home must be with the applicants, and

(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

(5) At the time of the making of the order both the applicants must have attained the age of 18.

(6) The court must be satisfied that both—

(a) the woman who carried the child, and

(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—

(a) the making of the order,

(b) any agreement required by subsection (6),

(c) the handing over of the child to the applicants, or

(d) the making of arrangements with a view to the making of the order,

unless authorised by the court.”

27 . During the passage of the Bill a Member of Parliament proposed an amendment which would have allowed the intended father to be the legal father at birth. However, the amendment was opposed by the Government. Surrogacy agreements were not enforceable so as not to encourage the removal of babies from their mothers against the mothers’ wishes. In the Government’s view, expressed by way of a Ministerial Statement, the proposed amendment would have undermined that position. If a surrogate chose to keep a child, taking fatherhood away from her partner and giving it to the commissioning father, if he was the genetic parent, would open the way for the commissioning couple to claim custody of the child.

28 . Pursuant to sections 77 to 79 of, and Schedule 1 to, the Adoption and Children Act 2002 and the Human Fertilisation and Embryology (Parental Orders) Regulations 2018, the Registrar General had to maintain a Parental Order Register. Every parental order had to contain a direction to the Registrar General to make an entry in the Register; and the Registrar General had to ensure that there was a traceable link between the Parental Order and the child’s original birth certificate. That link was not open to the public for general inspection or search, but a certificate from the Parental Order Register would be issued for the child. This certificate was materially similar to a long ‑ form birth certificate, save that both the intended parents were recorded as “parent”.

29. In 2019 the Law Commission of England and Wales and the Law Commission of Scotland (being independent statutory bodies whose role was to review and make recommendations as to law reform) launched a consultation on how to make surrogacy laws that work for the parents, the surrogate and, most importantly, the child. The consultation ran from 6 June 2019 to 11 October 2019 and the Law Commissions expect to publish a final report with their recommendations for reform of the law, and a draft Bill, in the Autumn of 2022.

30 . In the introduction to the Consultation Paper the Law Commissions noted that the HFEA had been heavily influenced by the Warnock Report, which was published in 1984 and had concluded that all surrogacy arrangements (whether altruistic or commercial) were “liable to moral objection”. As a result, the legislation had been criticised on the basis that it seemed to be unduly protective of the surrogate. The Law Commissions continued:

“The key aspects and principles of the current law on surrogacy therefore date from legislation passed nearly 30 years ago. The law on surrogacy is now overdue for re ‑ examination in light of the societal and medical changes that have occurred during this intervening period. As has been recently described:

‘while the concept of family has been a fluid throughout history and across cultures, the development of reproductive technology over the past decades has seen significant changes to our understanding of family, parenthood, and the creation of life itself.’

...

Whilst we acknowledge that there is a lack of public attitudinal research in this area, the research that exists suggests that public attitudes to surrogacy also now stand in stark contrast to the prevailing hostile attitudes at the time of the SAA 1985. The available research reflects the fact that the legislation is now out of step with attitudes towards surrogacy. Reflecting this change, the Department of Health and Social Care (the “DHSC”) recently published, for the first time, guidelines on the practice of surrogacy with two publications. One of these documents states clearly that ‘the Government supports surrogacy as part of the range of assisted conception options’.”

31. On the issue of legal parenthood, the Law Commissions considered that the current law could be said to give insufficient weight to what the parties in a surrogacy agreement – both surrogate and intended parents – actually wanted to happen, assuming that they had made the choice in an informed way and of their own free will. Their key provisional proposal was for the creation of a new surrogacy pathway which, when followed, would mean that the intended parents of a surrogate-born child would be the child’s legal parents from birth, unless the surrogate objected. According to the Law Commissions, “the law should reflect what the parties intend in terms of legal parenthood” and in their view “this will best promote the welfare of the child” by “removing the current split between legal and social/psychological parenthood that currently persists until the time that a parental order is made”.

COMPLAINT

32. The applicant complains under Article 8 of the Convention that the registration of D, rather than A, as her “father” on her birth certificate, pursuant to sections 35 and 38 of the Human Fertilisation and Embryology Act 2008 (“the HFEA”), breached her right to respect for her private life.

THE LAW

33. More specifically, the applicant complains that her biological father was not accurately recorded on her birth certificate at the time of her birth. She argues that there should have been a “normative presumption” that the birth registration of a child would accurately record the identity of the biological father, where consent was provided for conception and identification as the father.

34. Article 8 of the Convention provides as follows:

“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.”

35. The Government invited the Court to reject the applicant’s complaint as manifestly ill-founded. First, they contended that there had been no interference with the applicant’s rights under Article 8 of the Convention. It could not be assumed that genetic parental relationships took precedence over other parental relationships. If this were the case, the egg donor would have been registered as the applicant’s mother instead of C. In addition, on account of her age, the applicant’s own view of her private identity was neither known nor ascertainable. The present case was distinguishable from the surrogacy cases previously considered by the Court because there was no clear and exclusive father-child relationship between A and the applicant. On the contrary, four people regarded themselves as her parents, and three as her father. Finally, the Government argued that the applicant was provided with absolute certainty as to her legal parentage from birth; C and D were her legal parents and this fact could only be changed by order of the domestic courts. There was no international contradiction in the applicant’s identity, since she was not recorded as being the daughter of A in any other country. Moreover, this was not a case in which she could not or would not know of the genetic link between herself and A.

36 . In the alternative, the Government submitted that any interference with the applicant’s right to respect for her private life was justified. It was not in dispute that any interference was in accordance with the law, or that it pursued the legitimate aims of protecting health and protecting the rights of freedoms of others by ensuring legal certainty and clarity as to whom the law treated as parents; ensuring that donors of gametes used in the process of assisted procreation were not treated as legal parents; and ensuring that surrogacy arrangements were not enforceable in domestic law. As complex social and ethical issues were concerned, on which there was no European consensus, the State had a wide margin of appreciation. Furthermore, the legislation in this area had been reviewed by Parliament and was the subject of very considered legislative objectives.

37. In the Government’s view, if there was any duty on the State at all, it was to provide for the possibility of legal recognition of the relationship between A and the applicant; how that recognition was realised was a matter for the State. In the present case, the State had provided multiple possibilities for legal recognition, including parental orders and parental responsibility orders. A was not eligible for the former, but had been granted the latter with the consequence that he had full parental responsibility for the applicant. Pursuant to section 3 of the Children’s Act 1989 (see paragraph 24 above) he had “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

38. It was submitted on behalf of the applicant that the failure to recognise A as her father clearly constituted an interference with her right to respect for her private life. The Court had made it clear that the establishment of biological parentage was an important component of an individual’s identity. In the United Kingdom a birth certificate was “the identity document template” which provided the record of birth, not only for the applicant for her life, but also for her children and for generations to come. The birth certificate should have been a record of her birth history, but instead it was misleading, inaccurately recording “D” as her father, despite the fact that her biological father was known and consented to be recognised.

39 . It was further submitted that the operation of sections 35 and 38 of the HFEA constituted an unjustified interference with her right to respect for her private life under Article 8 of the Convention. There should have been a “normative presumption” that the birth registration of a child would accurately record the identity of the biological father, where consent was provided for conception and identification as the father. This proposition reflected an “unarguable international consensus” amongst the State parties to the Convention and justifications for the departure from this “normative starting point” should not give rise to a disproportionate violation of the child’s right to respect for its identity. It was therefore not proportionate for sections 35 and 38 to operate as they did. While it was acknowledged that the State’s margin of appreciation was wide in respect of the regulation of surrogacy arrangements, it was argued that it was narrow in respect of identity and the recognition of legal status.

40. It was further contended on behalf of the applicant that the Court had made clear when determining the right of parental identity under Article 8 of the Convention that private life rights required the need for legal certainty in family relationships. Notwithstanding the margin of appreciation afforded to States, Convention protection required biological reality to trump legal presumption (see Phinikaridou v. Cyprus , no. 23890/02, § 55, 20 December 2007; see also Shofman v. Russia , no. 74826/01, §§ 44-46, 24 November 2005 and Novotný v. the Czech Republic , no. 16314/13, §§ 43-58, 7 June 2018). The Court had also emphasised the importance of establishment of biological parentage, as a component of identity (see Jäggi v. Switzerland , no. 58757/00, § 37, ECHR 2006 ‑ X; Godelli v. Italy , no. 33783/09, §§ 50, 52 and 57 to 58, 25 September 2012; and Boljević v. Serbia , no. 47443/14, § 55, 16 June 2020).

41. Finally, the Court was invited to have regard to Articles 3, 7 and 8 of the United Nations Convention on the Rights of the Child (“UNCRC”), which made it clear that the best interests of the child should be paramount, and that a child has, from birth, insofar as possible, the right to know her parents and to preserve her identity without unlawful interference.

(a) The International Coalition for the Abolition of Surrogate Motherhood (“ICASM”)

42. The ICASM emphasised the importance of protecting the surrogate mother’s right to change her mind after carrying a child for nine months, with all the physical and emotional exchanges that that implied.

(b) Stonewall Equality Limited (“Stonewall”)

43. Stonewall contended that a child born as a result of surrogacy benefitted when the factual realities of her family life were reflected in official documentation, particularly the birth certificate, which was fundamentally important throughout a person’s life. Although parental orders allowed for formal recognition of the identity of a child such as the applicant, and could therefore protect the Article 8 rights of such children, under United Kingdom law a surrogate’s husband could effectively veto the making of such an order, thus preventing the intended and/or genetic father from being recognised on the birth certificate. Use of this “veto” compromised the private life and identity of a child born via surrogacy.

44 . In other factually similar cases concerning the recognition of the parent-child relationship between intended parents and a child born via surrogacy, the Court has adopted a holistic approach, taking into account not only the situation when the child was born or even when it considered the complaint, but also whether there was a possibility for subsequent legal recognition (see, for example, Valdís Fjölnisdóttir and Others v. Iceland , no. 71552/17, § 74, 18 May 2021). However, it has consistently and clearly been stated on behalf of the applicant that the complaint in the present case is solely concerned with the fact that, pursuant to sections 35 and 38 of the HFEA, D, rather than A, was recorded as her father on her birth certificate. Both before the domestic courts and before this Court it has further been asserted that the complaint does not seek to raise the Article 8 compatibility of section 54 of the HFEA, which allowed for the making of a parental order where a child was born pursuant to a surrogacy arrangement using the gametes of one of the intended parties (see paragraph 26 above).

45. In the context of surrogacy arrangements, the Court has acknowledged that the refusal to afford any legal recognition to the family ties between the intended parents and a child is capable of constituting an interference with the child’s right to respect for his or her family life and private life ( Mennesson v. France , no. 65192/11, §§ 48-49, ECHR 2014 (extracts), Labassee v. France , no. 65941/11, §§ 50 ‑ 51, 26 June 2014). This is because respect for private life requires that everyone should be able to establish details of his or her identity as an individual human being. This includes the legal parent-child relationship, since an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned (see Mennesson and Labassee , cited above, §§ 96 and 75 respectively). It would not be in the interests of the child to deprive him or her of a legal relationship where the biological reality of that relationship had been established and the child and parent concerned demanded full recognition thereof (see Mennesson , cited above, § 100). The Court has also recognised that, depending on the law of the Contracting State concerned, non-recognition of the legal parent ‑ child relationship may entail certain practical and material disadvantages relating to nationality and inheritance rights (see Mennesson , cited above, §§ 97-98).

46. The Court notes, however, that in the present case the applicant has not been wholly deprived of a legal relationship with A. After A and B brought proceedings in the Family Court, they were not only granted parental responsibility together with C and D, but a child arrangements order was also made, as a consequence of which the applicant lives with A and B; she has their names incorporated into her surname; and A and B have the legal right to make all “parenting decisions” (see paragraph 5 above). As such, the case is readily distinguishable from the French cases cited above, where the intended parents had no legal relationship whatsoever with the child.

47. Moreover, the applicant has not been deprived of the possibility of establishing the details of her identity. After all, there is nothing preventing A and B from telling her about the circumstances of her birth and her national and cultural heritage. She also enjoys limited contact with her birth mother and her family (see paragraph 6 above). Furthermore, there is no evidence that the applicant has experienced any practical or material disadvantages by virtue of the operation of sections 35 and 38 of the HFEA. In this regard, the High Court judge found no evidence of any harm to her from not being a Brazilian citizen; and found the suggestion of any impact on her inheritance rights to be speculative and in any event capable of being overcome by way of testamentary provision (see paragraph 16 above).

48. Therefore, insofar as there has been an interference with the applicant’s right to respect for her private life, it can only arise from whatever degree of legal uncertainty might flow from the automatic recognition of D, rather than A, as her father on her birth certificate. The Court would accept that this was capable of constituting an “interference” with her Article 8 rights; however, for the reasons set out in the preceding paragraphs, and in view of the limited manner in which the applicant has framed her Convention complaint, it considers any such interference to be very limited indeed.

49. It is not in dispute that the recognition of D as the applicant’s legal father had a basis in domestic law, namely sections 35 and 38 of the HFEA (see paragraph 25 above). Moreover, the Government argue, and the applicant does not dispute, that it pursued the legitimate aim of protecting the rights of freedoms of others by ensuring legal certainty and clarity as to whom the law treated as parents; ensuring that donors of gametes used in the process of assisted procreation were not treated as legal parents; and ensuring that surrogacy arrangements, while lawful, were not enforceable in domestic law (see paragraphs 14 and 36 above). Although the HFEA has been criticised for having been heavily influenced by a report published in 1984 which concluded that all surrogacy arrangements were “liable to moral objection” (see paragraph 30 above), there remains no consensus among the Contracting States when it comes to the acceptance of surrogacy arrangements. According to a comparative law survey undertaken in 2019, surrogacy arrangements were permitted in nine of the forty-three Contracting States which responded to the survey, they appeared to be tolerated in a further ten and they were explicitly or implicitly prohibited in the remaining twenty‑four Contracting States (see Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16 ‑ 2018 ‑ 001, French Court of Cassation, § 23, 10 April 2019, hereinafter “ Advisory opinion P16-2018-001 ”). The Court would therefore accept that the impugned measure pursued a legitimate aim listed in the second paragraph of Article 8 of the Convention: namely, the “protection of the rights and freedoms of others”.

50 . With regard the necessity and proportionality of the impugned legislation, the Court recalls that sections 35 and 38 of the HFEA apply to cases of assisted reproduction rather than to surrogacy arrangements per se . On this issue there is no evidence before the Court about the practice in other Contracting States, and certainly none capable of supporting the applicant’s claim that there was an “unarguable international consensus” in favour of recognising the biological father on the birth certificate (see paragraph 39 above). In fact, a provision similar to sections 35 and 38 of the HFEA clearly exists in Iceland (see Valdís Fjölnisdóttir and Others , cited above, § 27 ).

51. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 182, 24 January 2017). Where, however, 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 (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I, and A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Paradiso and Campanelli , cited above, § 182, and the sources cited therein).

52. As regards the Court’s recognition that the States must in principle be afforded a wide margin of appreciation regarding matters which raise delicate moral and ethical questions on which there is no consensus at European level, the Court refers, in particular, to the nuanced approach adopted on the issue of heterologous assisted fertilisation in S.H. and Others v. Austria ([GC], no. 57813/00, §§ 95-118, ECHR 2011), and to the analysis of the margin of appreciation in the context of surrogacy arrangements and the legal recognition of the parent-child relationship between intended parents and the children thus legally conceived abroad in Mennesson (cited above, §§ 78-79).

53. In cases of assisted reproduction, a number of different individuals may have been involved in the child’s conception, and thus have a claim to parentage. In the case at hand, there were five such individuals: A, B, C, D and the egg donor. In this context, the Court notes that while A’s “fatherhood” has since become both a biological and a practical reality, this was not the case at the moment of the applicant’s birth. After all, it appears that A’s paternity was only established some time after the applicant was born, since C had become pregnant using sperm from both A and B (see paragraph 4 above). Consequently, while there was no suggestion that D was her biological father, at the moment of her birth it was not and could not have been known whether her biological father was A or B. Moreover, unlike in the cases previously considered by the Court, A, B, C and D were all within the jurisdiction of the respondent State and had made competing claims to be the applicant’s “parents”, as a result of which the matter had to be settled by the Family Court (see paragraph 5 above). In the French cases cited above, the applicants’ complaints were broader in scope; as they concerned their inability to obtain recognition in France of the legal parent-child relationship lawfully established abroad as the result of a surrogacy agreement, they were not limited to the situation existing at the moment of – or shortly after – birth. By the time the children arrived in France, it was clear that their intended parents (one of whom was the biological father) were the only persons who had, and who wished to exercise, parental responsibility.

54. In light of the potential for considerable uncertainty regarding the parentage of a child born by way of assisted reproduction, borne out by the facts of the case at hand, in the Court’s view the decision of the respondent State to create a clear rule governing parenthood in cases of assisted reproduction from the moment of the child’s birth fell within the wide margin of appreciation enjoyed by the State when deciding such matters.

55. In the United Kingdom the legislature has chosen to confer parenthood on the gestational mother and her husband. This choice appears to have been influenced both by the need to prevent gamete donors from being recognised as legal parents at birth and the desire to prevent surrogacy agreements from being enforceable so as not to encourage the removal of babies from their gestational mothers against the mothers’ wishes (see paragraph 14 above). Indeed, a proposed amendment which would have allowed the intended father to be the legal father at birth was expressly opposed by the Government since it would have undermined its position that surrogacy agreements were not enforceable (see paragraph 27 above). As a consequence, where the gestational mother is a surrogate, the intended parents are not automatically recognised as the legal parents of the child, even where the intended father is the biological father.

57. In this regard, the cases relied on by the applicant offer no support for her contention that Article 8 requires the existence of a “normative presumption” in favour of recognising the biological father on the birth certificate. Phinikaridou, Shofman and Novotný (all cited above) concerned time bars for paternity challenges and not the original registration on the birth certificate; and Jäggi , Godelli and Boljević (all cited above) concerned complaints by children who were denied access to information necessary to establish with any certainty their parentage. In the present case the applicant does not complain about the existing mechanism for obtaining legal recognition of an intended parent through the making of a parental order, nor has she been left in a situation of uncertainty concerning her parentage.

58. Consequently, the present complaint must be declared inadmissible as manifestly ill-founded pursuant to Article 35 § 3(a) of the Convention. In reaching this conclusion, it has not been necessary for the Court to consider whether there existed in the United Kingdom a possibility for the legal recognition of the intended parents (for example, through an application for parental responsibility, a child arrangements order or a parental order), as this was not the subject of the applicant’s complaint.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 June 2022.

Ilse Freiwirth Yonko Grozev Deputy Registrar President