Legal summary

November 2022

D.B. and Others v. Switzerland - 58252/15 and 58817/15

Judgment 22.11.2022 [Section III]

Article 8

Article 8-1

Respect for family life

Respect for private life

Protracted non-recognition of legal parent-child relationship between child born through gestational surrogacy abroad and intended father who was genetic father’s registered partner: violation (child); no violation (parents)

Facts – The first and second applicants were men in a same-sex relationship who had been registered partners since February 2011. In 2010 they entered into a gestational surrogacy contract in the United States under which the second applicant became the male donor. After the pregnancy was confirmed, a US court declared them the legal parents of the unborn child. The third applicant was born in 2011 and a birth certificate reflecting the judgment was issued.

In late April 2011 the applicants made a request in Switzerland for the US decision to be recognised and the certificate copied into the civil register. In March 2012 the Cantonal Register Office refused to do either. In May 2015 the Federal Court recognised the US judgment in so far as it concerned the legal parent-child relationship between the child and his genetic father (the second applicant) but withheld recognition of the relationship declared by the US court between the child and the first applicant. In November 2015 the applicants lodged the present applications with the Court.

In January 2018 an amendment to the Civil Code came into force which legalised the adoption of a registered partner’s child. The applicants promptly filed for adoption. The cantonal authorities granted the adoption in December 2018.

Law – Article 8:

(a) Applicability – Respect for private life required that every child should be able to establish the particulars of his or her identity as a human being, including legal parent-child relationships. Furthermore, where the intended parents had cared for a child born through surrogacy since birth, as biological parents would have done, and where they all lived together in a manner wholly indistinguishable from “family life” in its usual meaning, that sufficed to establish the applicability of the “family life” aspect of Article 8. In this case the Federal Court had itself acknowledged that the child had always lived with the first and second applicants, so that they formed a “family unit” protected by Article 8. Accordingly, the “private life” (third applicant) and “family life” (all applicants) aspects of that Article were applicable to the applicants’ complaint.

Conclusion: Article 8 applicable.

(b) Merits –

(i) Interference, legal basis and legitimate aim – There had been an interference with the right of the third applicant to respect for his private life and the right of all the applicants to respect for their family life. The interference had been in accordance with the law prohibiting surrogacy and had pursued the legitimate aims of protecting health and the rights and freedoms of others.

(ii) Necessity in a democratic society –

- Considerations common to all the applicants – The first two applicants were a same‑sex couple in a registered partnership, whereas the applicant parents in the cases previously dealt with by the Court ( Mennesson v. France , Labassee v. France and D. v. France ) had been different-sex married couples. That notwithstanding, the principles expounded in those cases were applicable to the present case and specifically to the legal parent-child relationship between the first and third applicants.

The best interests of the child entailed, among other things, the legal identification of the persons responsible for raising the child, meeting his or her needs and ensuring his or her welfare, and the possibility for the child to live and develop in a stable environment. For that reason, the child’s right to respect for private life required that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended parent. Accordingly, the margin of appreciation afforded to the States was limited where the principle of establishing or recognising parentage was itself at issue. Furthermore, the interests of the child could not depend on the parents’ sexual orientation alone.

One of the main arguments relied on by the Federal Court in deciding against the applicants had been that Swiss law regarded surrogacy as contrary to public policy ( ordre public ). However, that line of argument, while relevant, was not in itself dispositive of the matter. From the standpoint of the Convention, the potentially objectionable conduct of the parents had to be put to one side so as to enable the pursuit of the best interests of the child, which was the paramount consideration in such situations. That had also been the view of the Administrative Court, which had held that the child should not be made to bear the adverse consequences of his parents’ choice, regrettable though it had been.

- Third applicant – When it came to the means, as opposed to the principle itself, of establishing or recognising parentage, the States had a wider margin of appreciation. In the present case, at the time of the third applicant’s birth, domestic law had afforded the applicants no possibility of recognition of the legal parent‑child relationship between the intended parent (the first applicant) and the child. Adoption had been open to married couples only, not extending to couples in registered partnerships. Not until 1 January 2018 had it become possible to adopt the child of a registered partner. Once it had, the applicants had filed for adoption and had been granted it in December 2018.

Thus, for nearly seven years and eight months (from the application for recognition until the adoption order), the applicants had not had any possibility of securing definitive recognition of the legal parent‑child relationship. Such a time frame was incompatible with the principles laid down in the cases cited above and, in particular, with the best interests of the child, in so far as it might put the child in a position of legal uncertainty regarding his or her identity within society and deprive him or her of the chance to live and develop in a stable environment.

In the circumstances, to withhold recognition of the lawfully issued foreign birth certificate in so far as it concerned the legal parent-child relationship between the intended father (the first applicant) and the child born through surrogacy in the United States, without providing for alternative means of recognising that relationship, had not been in the child’s best interests. The general and absolute impossibility, for a significant period of time, of obtaining recognition of the relationship between the child and the first applicant had amounted to a disproportionate interference with the third applicant’s right to respect for his private life. It followed that Switzerland had, in the circumstances of the case, overstepped its margin of appreciation by not making timely legislative provision for such a possibility.

Conclusion: violation (by six votes to one).

- First and second applicants – It had been neither arbitrary nor unreasonable for the Federal Court to hold that using surrogacy in the United States to circumvent the prohibition in place in Switzerland had amounted to a material evasion of the law. What was more, the first and second applicants had not alleged that they had been unaware of the Swiss law prohibition against surrogacy, and they had acted in such a way as to present the competent authorities with a fait accompli .

The Swiss authorities’ non‑recognition of the birth certificate had not, in practice, significantly affected their enjoyment of family life. The Federal Court had regarded the applicants as amounting in any case to a “family unit” protected by Article 8. Moreover, the brief allegations put to the Court, in particular to the effect that the parents had met with difficulties at day-care, preschool and school, lacked sufficient substantiation and, in any event, did not seem serious enough to be regarded as representing an interference disproportionate to the aim pursued, namely the prohibition of gestational surrogacy as a reproductive method. Accordingly, the practical difficulties potentially facing the applicants in their family life in the absence of recognition under Swiss law of the relationship between the first and third applicants were within the limits of compliance with Article 8.

Conclusion: no violation (unanimously).

Article 41: EUR 15,000 awarded to the third applicant in respect of non-pecuniary damage.

(See also Labassee v. France , 65941/11, 26 June 2014, Legal summary ; Mennesson v. France, 65192/11, 26 June 2014, Legal summary ; 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], P16-2018-001, 10 April 2019, Legal summary ; D. v. France , 11288/18, 16 July 2020, Legal summary )

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

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