DISSENTING OPINION OF JUDGE GOTCHEV

To my regret, I cannot agree with the majority in the present case, for the following reasons.

I agree that, according to the constant case-law of the Court, the relationships between X, Y and Z can be regarded as "family life" (see paragraph 37 of the judgment). Since it was established that de facto family ties of the kind protected by Article 8 of the Convention (art. 8) existed between the applicants, I consider that the State was under a duty to act in a manner calculated to enable those ties to be developed and to establish legal safeguards to render possible, from the moment of birth or as soon as practicable thereafter, the child ’ s integration into the family (see the case-law cited at paragraph 43 of the judgment). In my view, this obligation entails the possibility for X to be recognised in law as Z ’ s father.

It is true that there is no common standard among the Contracting States with regard to the parental rights of transsexuals and I agree with the conclusion that States must therefore be allowed a wide margin of appreciation in this area (see paragraph 44 of the judgment). It is nonetheless necessary for the Court to establish whether the present situation under English law, whereby the transsexual "father" of a child conceived by AID was denied the possibility to be recognised as such in law, struck a fair balance between the individual ’ s right to respect for family life and any countervailing general interest. In striking this balance, the welfare of the child should be the prevailing consideration, irrespective of the manner of his or her conception or the transsexuality of the "social father".

For these reasons, I find violations of Articles 8 and 14 of the Convention (art. 8, art. 14).

[1] The cas e is numbered 75/1995/581/667. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States no t bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: f or practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-II), but a copy of the Commission's report is obtainable from the registry.

[4] Paragraphs 33 and 37 of the judgment.

[5] Paragraphs 41 and 44 of the judgment.  See also section III of my opinion in the recent case of Z v. Finland , judgment of 25 February 1997, Reports of Judgments and Decisions 1997-II.

[6] Velosa Barreto v. Portugal judgment of 21 November 1995, Series A no. 334, p. 12, para . 30.

[7] Paragraphs 44 and 52 of the judgment.

[8] Paragraph 51 of the judgment .