CONCURRING OPINION OF JUDGE LEMMENS

1. It is not without some hesitation that I agreed with my colleagues that there has been no violation of Article 8 of the Convention insofar as that conclusion relates to the complaint about the alleged violation of the right to respect for private life (see paragraph 76 of the judgment). In this separate opinion, I would like to explain the reasons for my hesitation.

2. The judgment examines in detail the complaint concerning the right to respect for family life (see paragraphs 56-75). When it comes to the complaint regarding the right to respect for private life, it merely notes that the applicants’ arguments relating to their private life are “in principle the same” as those submitted with respect to their family life, and observes that, “in the light of this”, there is no reason to reach a conclusion that is different from the one with respect to family life (see paragraph 76 of the judgment).

It seems to me that private life and family life are conceptually different, and that complaints relating to these two aspects of Article 8 should therefore in principle be analysed independently from each other. Why not in this case?

3. Insofar as the applicants invoke a violation of their right to respect for family life , they complain about the refusal to register the first and the second applicant as the third applicant’s parents (see paragraph 43 of the judgment). They argue that the State’s interference has affected the stability of the “social relationship” existing between the three applicants (see in particular paragraph 47 of the judgment). On this issue, the Court finds that the non-recognition of a formal parental link, despite the Californian birth certificate to that effect, does not exceed the margin of appreciation afforded to the State. In order to come to that conclusion, it takes into account “the absence of an indication of actual, practical hindrances in the enjoyment of family life, and the steps taken by the respondent State to regularise and secure the bond between the applicants” (see paragraph 75 of the judgment).

The family-life complaint is thus basically considered from the point of view of the stability of the mutual enjoyment by parent and child of each other’s company, which is indeed a fundamental element of family life (see, among many others, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000 ‑ VIII; K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII; and Strand Lobben and Others v. Norway [GC], no. 37283/13, § 202, 10 September 2019).

4. As the case-law shows, the right to respect for private life is usually concerned with another aspect of the situation arising from a gestational surrogacy agreement, namely the right of the child to the recognition of the legal parent-child relationship with the intended father (see Mennesson v. France , no. 65192/11, §§ 80, 96 and 99, ECHR 2014 (extracts), and Labassee v. France , no. 65941/11, §§ 38, 75 et 79, 26 June 2014), as well as with the intended mother (see 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], request no. P16-2018-001, French Court of Cassation, § 46, 10 April 2019, and D v. France , no. 11288/18, § 54, 16 July 2020). That right is deemed to be part of the child’s right to establish details of its identity as an individual human being (see Mennesson , cited above, § 96, and Labassee , cited above, § 75).

The Court has thus far limited the child’s right to recognition of the legal parent-child relationship to relationships involving a biological link with at least one of the intended parents (see the Advisory opinion cited above, § 36). It has, however, indicated that “it may be called upon in the future to further develop its case-law in this field, in particular in view of the evolution of the issue of surrogacy” (ibid.).

It seems to me that future development should not at all be excluded. The negative impact which the lack of recognition of a legal relationship between the child and the intended parents has “on several aspects of that child’s right to respect for its private life” (ibid., § 40, with an enumeration of a number of disadvantages for the child) applies to all children born through a surrogacy arrangement carried out abroad. Indeed, for the children the impact is the same, whether or not one or both of their intended parents has a biological link with them. In both situations, I wonder whether the legal limbo in which a child finds itself can be justified on the basis of the conduct of its intended parents or with reference to the moral views prevailing in society.

It is true that adoption is a means of recognising a parent-child relationship. However, as the facts of the present case show, adoption is not always a solution for all the difficulties which the child may be experiencing (see paragraph 74 of the judgment).

5. It is for the above reasons that I hesitated to agree with the conclusion adopted in paragraph 76 of the judgment.

What convinced me, however, was that this case is not the right one to deal specifically with the third applicant’s right to respect for private life.

Indeed, the proceedings before the domestic courts dealt with the authorities’ refusal to register the relationship between the three applicants. While the courts in their decisions referred to private and family life, their reasoning seems to have focused on the interference with family life. Following this approach on the part of the domestic courts, the applicants in their application to the Court relied explicitly on the right to respect for family life and did not mention the right to respect for private life.

In these circumstances, I agreed with the conclusion that there is in this case no reason to reach a different conclusion with regard to private life than in respect of family life.

6. The scope of the child’s right to the establishment of a legal parent-child relationship, an element of its right to respect for private life, must be left for further consideration in another case.