DISSENTING OPINION OF MR. H. DANELIUS

      In the present case, the Commission is faced with a combination

of two difficult and sensitive issues, one concerning child-birth as

a result of artificial insemination by a donor and the other concerning

the legal effects of gender re-assignment surgery.

1.    A Contracting State may well apply legal rules, according to

which a person shall in some circumstances be regarded as a father,

although this does not correspond to the biological reality. In some

cases, the law may lay down presumptions of paternity, which in the

individual case may be, or may not be, well-founded. In other cases,

the law may recognise someone as a father, although it is clear that

he is not in reality the father.

      In these matters, the Contracting States must have a rather wide

margin of appreciation insofar as the requirements of Article 8 of the

Convention are concerned. On the other hand, I do not consider that

Article 8, taken separately, requires that a State shall recognise

someone as a father in a case where it is clear that he is not the

father. Such is the situation in the present case where the first

applicant A is not in reality the father of the third applicant Z.

      Consequently, I find no violation of Article 8 of the Convention,

taken alone.

2.   In my opinion, a separate question arises in the present case in

regard to Article 14 of the Convention in conjunction with Article 8.

      According to the applicable law - section 28(3) of the Human

Fertility and Embryology Act 1990 - a man, who is party to treatment

which involves the placing of sperm of another man in a woman, shall

be deemed to be the father of the child born as a result of that

treatment. However, in this respect a female to male transsexual, who

has undergone gender re-assignment, such as the first applicant X, is

not recognised as a man and cannot therefore under this provision be

considered to be the father of a child born as a result of artificial

insemination.

      The question arises whether this constitutes discrimination

contrary to Article 14 in conjunction with Article 8 of the Convention.

      While I take the view that the Court's case-law in the Rees and

Cossey cases should probably not in the long run be upheld, I consider

that, as long as this case-law has not been changed, it is not possible

to take the further step it would involve if the United Kingdom was

considered in this case to be under an obligation to recognise X as Z's

father on the same basis as a man referred to in the above-mentioned

1990 Act.

      I conclude therefore that there has not been in the present case

any violation of Article 14 in conjunction with Article 8 of the

Convention.

                                                        (Or. English)