JOINT DISSENTING OPINION OF JUDGES ROZAKIS, BOTOUCHAROVA AND HAJIYEV

With regret we are unable to follow the majority of the Court and find a violation of Article 8 in this case. We consider that, in the circumstances of the case, it is difficult to establish that a right to respect for private life existed or, in any event, that the State interfered with this right in such a way as to transgress it.

We agree with the majority of the Court that at the heart of this case lies “the applicant ' s ability to obtain recognition of Mr G. as the biological father of the stillborn child, notwithstanding the legal presumption that the husband was the father of the child born within three hundred days of the dissolution of the marriage. The attribution of her late partner ' s surname and patronymic name to the stillbirth would come as a corollary of such recognition” (see paragraph 25 of the judgment). This reading of the case by the majority faithfully reflects the position of the applicant during the domestic proceedings, in which she asked the national courts to establish Mr G. ' s paternity in respect of the stillbirth and, as a consequence, to allow her to change the latter ' s name. So we are not faced with a situation where the applicant had simply asked for a change of a name: what she was requesting before the national courts was mainly a recognition of paternity.

We also agree with the majority of the Court that in the circumstances of the case the personal ties developed between the applicant, Mr G. and the stillborn child cannot lead to the conclusion that “family life” had developed between them, generating a right protected under Article 8. Yet the Court concludes that “[b] earing in mind that the applicant must have developed a strong bond with the embryo whom she had almost brought to full term ... the establishment of his descent undoubtedly affected her ' private life ' , the respect for which is also guaranteed by Article 8” (see paragraph 27 of the judgment).

We are ready to accept the argument that the strong emotional bond of a mother with her stillborn child may be regarded as part of the mother ' s private life. However, we have difficulty in accepting that her private life encompasses a right to ask for recognition of the paternity of the stillborn child, as part of the State ' s positive obligations in guaranteeing the protection of private life offered by Article 8. Here, we are concerned with the private life of the mother, not that of the child – who could have had, if born alive, a legitimate expectation of being recognised by his biological father as part of his family and private life – and we are dealing not simply with a request to change the name of another person, but with the latter ' s recognition by a third person.

But even if we assume, arguendo , that the private life of the mother may entail such a kind of right, still the question remains open whether the interference by the State in not agreeing to recognise the child ' s biological father as part of the mother ' s right to respect for her private life is not justified by the fact that the most interested party – the father of the child – was not alive at the time of the request and, hence, was unable to protect his rights in respect of his name and his family life.