Information Note on the Court’s case-law 257

December 2021

S.-H. v. Poland (dec.) - 56846/15 and 56849/15

Decision 16.11.2021 [Section I]

Article 8

Article 8-1

Respect for family life

Inability to obtain Polish nationality by descent by children born through surrogacy in USA to same-sex couple and residing in Israel, where legal parent-child link is recognised: inadmissible

Facts – The applicants are twin brothers born in 2010 through surrogacy in the USA. They have Israeli and American citizenship and live in Israel. Their ‘intended parents’ are two men, living in a same-sex relationship in Israel and parenting the boys since their birth. One of the intended parents, the boys’ biological father, is also a Polish citizen. However, the boys’ application to confirm the acquisition of Polish nationality by descent was dismissed by Polish authorities/courts. The applicants were born via surrogacy which was not allowed in Poland and the American birth certificates indicated two men as the applicants’ parents which contravened the principles of the Polish legal order.

Law – Article 8:

The Court had to determine whether the refusal to recognise the legal parent-child relationship with the applicants’ biological father and the ensuing refusal to confirm the acquisition of Polish citizenship by descent had affected the applicants’ private life thus rendering Article 8 applicable.

The Court employed a consequence-based approach and examined whether the impugned decisions had had sufficiently serious negative consequences for the applicants (compare Denisov v. Ukraine [GC]). It was further for the applicants to show convincingly that the threshold had been attained in their case.

The applicants had contended that they had been Polish Jews whose family members had been killed in the Holocaust and that that heritage had been extremely important to them. Allegedly, due to Israel’s difficult geopolitical situation, the family had been considering moving to Europe. However, the Court had not been provided with any specific information or details about the family’s plans to relocate to Poland and such a move had not been imminent. Whatever the degree of potential risk to the applicants’ family or private life, the Court had to determine the issue having regard to the practical obstacles which they had had to overcome on account of the lack of recognition in Poland of the legal parent-child relationship between the applicants and their legal parents.

As regards the direct consequences of the refusal to confirm the acquisition of Polish citizenship, the applicants had never lived in Poland. Since birth they had been living in Israel as a family unit with their intended parents. They already had dual US/Israeli citizenship and the domestic decisions had not rendered them stateless. In addition, they had not had any negative consequences or practical difficulties which they might encounter in their chosen country of residence, resulting from the Polish courts’ refusal to confirm the acquisition of Polish citizenship.

Furthermore, the applicants could benefit, in the State where they lived, from the legal parent‑child relationship with their biological father where the recognition of that relationship was not put into doubt. Moreover, the decisions of the Polish authorities had not left them in a legal vacuum both as to their citizenship and as to the recognition of the legal parent‑child relationship with their biological father.

The present case had to be clearly distinguished from Mennesson v. France and Labassee v. France in which the Court had expressly held that a lack of possibility of recognition of the legal relationship between a child born via surrogacy abroad and the intended father, where he had been the biological father, had entailed a violation of the child’s right to respect for his or her private life. In the present case the Polish authorities had refused to give effect to the foreign birth certificates establishing the legal parent-child relationship between the applicants and their biological father. However, that link was recognised in the country where the family resided.

Moreover, pursuant to the Directive 2004/38/EC the applicants, as family members of an EU citizen, were entitled to free movement within the EU and enjoyed the right to move and reside in the territory of another Member State.

The Court was mindful that the domestic decisions had clearly had some repercussions on the applicants’ personal identity. In addition, on a more practical level, as the situation stood to date, the applicants must have experienced some obstacles resulting from the fact that they did not have Polish (and consequently European) citizenship. Nevertheless, it did not appear that the negative effect which the impugned decisions had had on the applicants’ private life had crossed the threshold of seriousness for an issue to be raised under Article 8. Moreover, the applicants had not set forth, either to the Court or in the domestic proceedings, any other specific personal circumstances indicating that those decisions had had a serious impact on their private life.

Even taking into account their complaint that the domestic authorities had determined de novo their legal parentage in accordance with the principles of Polish family law, considering that the applicants did not live in Poland, the Court was unable to find any factual basis for concluding that there had been an interference with the right to respect for family life in the present case.

Furthermore, it did not appear that so far the family had had to overcome any practical obstacles on account of the Polish authorities’ decisions. Most importantly, since the applicants’ family resided in Israel, the inability to obtain confirmation of acquisition of Polish citizenship had not prevented them from enjoying, in the country where they lived, their right to respect for their family life. The applicants and their intended parents all had Israeli citizenship, and their legal relationship was recognised in Israel. The fact that the applicants were not recognised as Polish citizens would not have any bearing on their family life, for example in the event of their intended parents’ death or separation. Thus, any potential risk to their family life should be regarded in this particular case as purely speculative and hypothetical and could only possibly materialise if they took up residence in Poland.

In view of the above considerations, Article 8 was not applicable.

Conclusion : inadmissible (incompatible ratione materiae ).

(See also Labassee v. France , 65941/11, 26 June 2014, Legal summary ; Mennesson v. France , 65192/11, 26 June 2014, Legal summary ; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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