CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I voted with the majority for the finding that there was no violation of Article 8 of the Convention (art. 8). However, I consider that the impact of the judgment could have been strengthened by expanding the reasoning and adopting different wording in a number of places.

The text adopted seems to me to be based too much on the personal demands of X and Y alone, which are specific to their individual situations, and on a weighing of the practical and social advantages and disadvantages which might result from changing, or not changing, Z ’ s civil status. As this is the first case in which the European Court has had to deal with both transsexualism and the problem of a child ’ s right to know his biological origins, it should, in my opinion, have given more thought to the assessment of family life within the meaning of Article 8 (art. 8) and to the conflict of interests between parents and children.

Moreover, the instant case concerned a couple, X and Y, composed of a post-operative transsexual and a woman who had produced the child Z as a result of artificial insemination by anonymous donor.

Did X, Y and Z form a family? A family, in general, cannot be a mere aggregate of the individuals living under one roof. The ethical and social dimension of a family cannot be ignored or underestimated. If there was a family, as there appears to have been in the case before the Court, can the object sought by X be imposed on Z?

Studies have shown that not all transsexuals have the same aptitude for family life (after an authorised operation) as a non-transsexual (see the joint research by Alby et al., International Freudian Association, "Sexual identity and transsexuals", and the study by L. Pettiti , "Les transsexuels ", Que sais-je?, Presses universitaires de France).

The X, Y and Z case touched upon the conflict between the demand of a female-to-male transsexual (X) to be registered as the father of his female cohabitee ’ s child and the demand which could in due course be made by Z, who might sooner or later come to consider that her own interest lies in finding out who her biological father was. The Court should therefore also have assessed the conflict between family law, the law of filiation and the direct effect of the United Nations Convention on the Rights of the Child, to which it did not refer.

Should there be another case like this one, it would no doubt be desirable for the Commission and the Court to suggest to the parties that a lawyer be instructed specifically to represent the interests of the child alone.

The growing number of precarious and unstable family situations is creating new difficulties for children of first and second families, whether legitimate, natural, successive or superimposed, and will in the future call for thoughtful consideration of the identity of the family and the meaning of the family life which Article 8 (art. 8) is intended to protect, taking into account the fact that priority must be given to the interests of the child and its future. In the particular case of X, Y and Z, the consequences of finding a violation could already be gauged, namely the ambivalent situation which could result from a female-to-male transsexual being registered as a father while being considered under British law to be of female sex and registered as such in the register of births, marriages and deaths (see paragraph 47 of the judgment).

In the Cossey v. the United Kingdom and B. v. France cases, the Court, and its judges in their separate opinions, emphasised the civil-law problems raised by transsexualism and the knock-on effects of a change of civil status on the right to marriage, divorce, the law of succession, the law of adoption, etc.

The Court ’ s conclusions (see paragraphs 47, 51 and 52 of the present judgment) were therefore justified and prudent, but could in my opinion have been supplemented by a legal, sociological and ethical examination of the whole problem and the diversity of the rights and values to be attributed to each of the persons who go to make up a family.