JOINT DISSENTING OPINION OF JUDGES KJØLBRO, KOSKELO AND YÜKSEL

84. We have regrettably not been able to agree with the majority in their conclusion that there has been a violation of Article 8 in respect of the two children in the present case, the gist of which is that the intended mother of the children, who were born to the couple through a commercial surrogacy arrangement abroad, was not allowed to adopt the children (stepchild adoption). The children’s legal situation in Denmark was secured by the granting of citizenship as well as the award of joint parental responsibility to the intended mother and her husband, the biological father.

Margin of appreciation

85. The respondent State is one among the clear majority of States Parties which do not permit commercial surrogacy arrangements. Many jurisdictions lack a clear legal framework in this field.

86. According to the Court’s case-law, a wide margin is usually accorded to the States in matters where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, as well as where the State is required to strike a balance between competing private and public interests or Convention rights (see, for instance, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 182, 24 January 2017).

87. There is no doubt that commercial surrogacy is a subject where all those factors point to a wide margin of appreciation. In this context, we would recall that the case of Mennesson v. France (no. 65192/11, §§ 40-42, ECHR 2014) did not arise from a commercial surrogacy arrangement (see paragraph 8 of that judgment). Furthermore, the Court has acknowledged that adoption is also an issue where the States enjoy a wide margin, and that the Court’s task is not to substitute itself for the competent domestic authorities in determining the most appropriate policy for regulating the adoption of children, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Wagner and J.M.W.L. v. Luxembourg , no. 76240/01, § 128, 28 June 2007). Similarly, the Court has recently stated that the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating the complex and sensitive matter of the relationship between intended parents and a child born abroad as a result of commercial surrogacy arrangements (see Valdís Fjölnisdóttir and Others v. Iceland , no. 71552/17, § 67, 18 May 2021). The latter position is also reiterated in the present judgment (see paragraphs 44-45 and 52 of the judgment).

88. While it is correct, and we also accept, that the margin of appreciation should be reduced in circumstances where the requirement to protect the best interests of a child is at stake (see C.E. and Others v. France , nos. 29775/18 and 29693/19, § 100, 24 March 2022), the majority in the present context take this approach so far as to practically eliminate altogether, in substance, the margin of appreciation available to the Contracting States.

The phenomenon of commercial surrogacy

89. There is no need to enter here into any extensive discussion of commercial surrogacy and the controversies relating to it. It suffices to state that the reasons behind opinions and policies that are opposed to commercial surrogacy are essentially twofold. Firstly, those reasons reflect the view that human beings should not be turned into commodities that can be acquired with money. Secondly, they reflect the inherent risk of exploitation of vulnerable women who might be persuaded to offer their reproductive capacity for service to others in exchange for payment whereby, in addition, various intermediaries can derive financial gain from such commercial arrangements.

90. In a 2018 study on the subject authored by the UN Special Rapporteur, Ms Maud de Boer-Buquicchio, the issues, problems and divergent views relating to commercial surrogacy are well elucidated [2] . The study notes that as intercountry adoptions have fallen in number and increasingly become subject to international standards, the numbers of international surrogacy arrangements have rapidly increased in the absence of international standards [3] . The report addresses the necessity of maintaining key human rights standards “against the pressures created by the large-scale practice of a market- and contract-based form of commercial surrogacy” [4] . The study focuses on the imperative of preventing practices which in effect constitute “sale of children”, prohibited under Article 35 of the United Nations Convention on the Rights of the Child (UNCRC) “for any purpose or in any form”, and analyses surrogacy with reference to that prohibition. In that regard, the core problem is that the transfer of the child is the essence of the commercial surrogacy arrangement and is therefore part of the consideration for the payment of the surrogate mother [5] . The study further discusses the regulatory requirements that would have to be satisfied with a view to ensuring that commercial surrogacy avoids constituting “sale of children”. It appears that in the current context, the legal frameworks under which commercial surrogacy operates in jurisdictions where it is not prohibited fall short of those requirements. Indeed, the Special Rapporteur considers that States should prohibit commercial surrogacy until and unless a proper regulatory system is put in place.

91. The UN Committee on the Rights of the Child has also stated that unless properly regulated, surrogacy can constitute sale of children [6] .

92. Our purpose here is not to expound personal opinions regarding this subject matter but to illustrate the serious nature of the issues relating to commercial surrogacy, which militate against an approach that would practically eliminate any margin of manoeuvre for Contracting States opposed to commercial surrogacy as currently practised in jurisdictions from which children born through surrogacy are brought in.

The normative principle relating to the “best interests of the child”

93. The majority recall, and rely on, “the essential principle according to which, whenever the situation of a child is in issue, the best interests of that child are paramount” (see paragraph 76 of the judgment). It is an intriguing feature in the Court’s case-law that the phrase referring to the child’s interests as “paramount” is regularly cited, notwithstanding the fact that this is not the standard adopted in the special international-law instrument in the field of children’s rights. It is well-known that according to Article 3 § 1 of the UNCRC, the requirement is that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The latter standard is also the one enshrined in the EU Charter of Fundamental Rights (Article 24 § 2). Whereas “paramount” in the dictionary sense of the word means “more important than anything else”, this is clearly not the connotation of “a primary consideration”.

94. One searches in vain for any explanation as to why the standard in this regard should be stricter under the European Convention on Human Rights than under the UNCRC or the EU Charter. The Court has never articulated the reasons for such a difference, nor clarified the meaning of the notion of “paramount” as used in the context of this Convention. This is all the more striking as the Court has otherwise emphasised that the Convention should be interpreted in harmony with the general principles of international law (see X v. Latvia [GC], no. 27853/09, § 92, ECHR 2013).

95. On the other hand, the Court has never spelled out that “paramount” should indeed be understood literally, as “more important than anything else”. Actually, it is rather obvious that the word could not be given such a meaning in the context of the application of the provisions of the Convention. It cannot be argued, for instance, that in the context of the application of Articles 2, 3, 5 or 7 the best interests of a child could operate as a limitation of someone else’s rights under the said provisions that would not otherwise be permissible; the absolute nature of the rights involved may not be diluted even though it might be in the best interests of a child to do so. To give an illustration in concrete terms: in a Gäfgen -type scenario, the consideration of the child’s best interests did not then, and would not now, affect the application of Article 3 (see Gäfgen v. Germany [GC], no. 22978/05, § 107, ECHR 2010, where the Court held that the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities to save a child’s life). Or, to take another example from the context of Article 7, a criminal court would not be justified in deviating from the principle of nullum crimen sine lege even if it were in the best interests of a child victim for it to do so. In the latter situation, the demand to accommodate the best interests of children would instead require a response by the legislator.

96. Even in the context of Convention rights that are not of an absolute nature, it can hardly be correct to argue that the protection of the best interests of a child should mean that in individual cases no other considerations can be taken into account under any circumstances, or that those interests must always be regarded as more important than anything else. In reality, the Court has clearly not followed such an absolute approach. For instance, in cases of opposition between the interests of the child and those of one or both parents, it requires that the domestic authorities should seek to reconcile the rights of the parties instead of only paying attention to the individual best interests of the child. Actually, there are instances where the Court has expressly criticised the domestic authorities for “focusing on the interests of the child” (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 220, 10 September 2019).

97. In sum, the Court’s case-law presents no clear or coherent picture as to what is meant by the child’s best interests being “paramount”, or why it has chosen to rely on that test instead of the one adopted in the UNCRC or the EU Charter.

The “best interests” test in the context of adoption

98. We are fully aware that in the specific context of adoption, the wording of the UNCRC does state that the best interests of the child shall be “the paramount consideration” (Article 21). According to our understanding, however, this phrase must be read and interpreted in the light of its context and key purpose, namely the prevention of abusive practices serving the interests of adults rather than children, including adoptions amounting to the “sale of children”. Thus, the basic aim of the international regulation of adoption has been to counter problems similar to those arising in the context of commercial surrogacy. In this sense, the UNCRC expressly requires, inter alia , all appropriate measures to be taken in intercountry adoption to ensure that the placement does not result in improper financial gain for those involved in it. In the light of this, the choice of the word “paramount” in that context appears to be linked to the objective of combating such problems. Against that background, it would in our opinion be misguided to rely on the word “paramount” so as to leave States with no option, in the context of commercial surrogacy, but to confirm, by accepting formal adoption, the consequences of practices which may amount to the “sale of children”, prohibited under the UNCRC.

99. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which also aims “to prevent the abduction, the sale of, or traffic in children”, is intended to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child [7] . The Convention expressly requires measures to be taken to ensure that the consents have not been induced by payment or compensation of any kind and have not been withdrawn (Article 4 § 3). Furthermore, it requires the competent authorities to take all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention (Article 8). We are of course aware that the present case does not formally concern intercountry adoption. The point, however, is to illustrate that both of the above international instruments, the UNCRC and the Hague Convention, aim to prevent the same kind of problems as those arising in the context of commercial surrogacy.

Assessment in the present case

100. In the present case, there is no doubt that the Danish authorities, including the Supreme Court, treated the best interests of the children concerned as a primary consideration, albeit not as the sole one. The Supreme Court carried out an individualised review of the applicants’ situation, taking account of the relevant case-law of the Court, before reaching a reasoned decision. It is a well-established principle of this Court that where the domestic authorities have “carefully examined the facts, applied the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the individual interests against the public interest in a case, the Court would require strong reasons to substitute its view for that of the domestic courts” (see M.A. v. Denmark [GC], no. 6697/18, § 149, 9 July 2021; Levakovic v. Denmark , no. 7841/14, § 45, 23 October 2018; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012; and Axel Springer AG v. Germany [GC], no. 39954/08, § 88, 7 February 2012). In the light of the foregoing discussion, it is our view that the majority have not shown sufficiently strong reasons for the Court to substitute its view for that of the domestic authorities.

101. In this connection we would emphasise that the children were not left without legal protection, either with regard to their right to remain in Denmark – they were granted Danish nationality – or in terms of their legal relationship with the intended mother, as parental responsibility was bestowed jointly on her and their father. It has also been established that the children’s right to inherit from the intended mother could be secured through a will, subject to the same tax treatment as in the case of inheritance based on biological affiliation.

102. In particular, given the fact that parental responsibility for the children on the part of both intended parents was legally established, we find it difficult to accept that the rights provided under Danish law should be considered incapable of satisfying the requirements of “other means” of establishing a “legal parent-child relationship” as contemplated in the Court’s 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, 10 April 2019). In our view, the reference to “other means” should not be interpreted as narrowly as by the majority in this case. We note that in another very recent judgment, the majority of another Chamber of the Court found a violation of Article 8 in respect of a child born through surrogacy abroad in circumstances where, unlike in the present case, the intended non-biological parent was without parental responsibility for the child during the period concerned (see D.B. and Others v. Switzerland , nos. 58817/15 and 58252/15, 22 November 2022, not yet final).

103. In this context it is worth noting the shortage of options available to a State whose policy is opposed to commercial surrogacy, when it comes to countermeasures against recourse by its residents to commercial surrogacy abroad. Penal sanctions against the intending parents would remain a possibility but the Danish authorities have not chosen that option, the exercise of which might also have drastic repercussions on minor children in the family. We do not venture to speculate whether our colleagues in the majority might accept such a scenario, that is, the imposition of criminal sanctions on the intending parents, as being compatible with the idea that the children’s best interests should be paramount in the sense of being more important than anything else.

104. As regards the time aspect, it is both correct and entirely reasonable that the Court, in the above-mentioned Advisory Opinion, required that any “other means” than recognition of foreign birth certificates be capable of being implemented promptly and effectively in accordance with the child’s best interests. In the present circumstances, the main delay arose in the context of the adoption proceedings, where the domestic authorities had to reach decisions on novel issues and make assessments as to how they should address a difficult conflict of values and principles. It appears that nationality was granted promptly, and as regards the award of joint custody to the parents, it is not clear when such a request was first lodged. In any event, there is no indication in the file that the best interests of the children would have been endangered during the time taken by the domestic authorities to resolve that matter (see, mutatis mutandis , Valdís Fjölnisdóttir and Others , cited above, § 72). Therefore, we do not consider that there are sufficient grounds in the present case for finding a violation of Article 8 because of the time aspect alone.

Concluding remarks

105. In Paradiso and Campanelli (cited above), decided by the Grand Chamber some years ago, the Court held that there had been no violation of Article 8 in a situation where the intended parents, having brought a child born through surrogacy to Italy, were prevented from adopting the child and where the child was taken into public care with a view to adoption by other persons. In that case, unlike the present one, only the intended parents were applicants before the Court, not the child. However, such a difference alone, pertaining as it does to the procedural constellation at this international level, cannot serve as a sustainable dividing line for the approach to be taken in the matter of principle. This is so especially in the light of how the decision ‑ making operates at the domestic level. If a particular child has the right to be adopted by the intended parent(s), this also entails a right for the latter to adopt that child. The adoption either takes place for both the child and the adult who is the intended parent, or it does not take place at all. And if a child has the right to be adopted by a given person, a procedural avenue must be made available to enable such a decision to be reached. Thus, the approach taken by the majority, based on the idea that only the maximum achievement of the child’s best interests is good enough and that no other considerations can matter, appears to come very close to acknowledging that there is a “right to a child” through commercial surrogacy.

106. We would also recall that in Paradiso and Campanelli the Court accepted that, by prohibiting private adoption based on a contractual relationship between individuals and restricting the right of adoptive parents to introduce foreign minors into Italy solely to cases in which the rules on international adoption had been respected, the Italian legislature was seeking to protect children against illicit practices, some of which may amount to human trafficking (see paragraph 202 of that judgment). The Court also acknowledged that the domestic authorities had to make a difficult choice between allowing the applicants to continue their relationship with the child, thereby legalising the unlawful situation created by them as a fait accompli , or taking measures with a view to providing the child with another family in accordance with the domestic legislation on adoption (see paragraph 209 of that judgment). Most recently, in H v. the United Kingdom ((dec.), no. 32185/20, § 56, 31 May 2022), the Court stated that the child’s best interests may include fundamental components other than the legal recognition of the intended parents, such as protection against the risks of abuse which surrogacy arrangements entail.

107. The present outcome, effectively dictating the policy of the Contracting States in a highly sensitive matter, arises from the narrowest possible Chamber majority. This is hardly an optimal situation. Overall, the current state of the Court’s case-law in this field will be a source of considerable legal uncertainty, unless and until the Grand Chamber seizes the opportunity to create greater clarity.

108. In this regard it should be noted that the approach taken is also bound to have further implications in other types of situations arising in variable family constellations. For instance, upholding the child’s best interest as the sole, “paramount” consideration might entitle the child to be adopted not just by one couple but two, in circumstances where a child lives with two couples, whether of different sex or the same sex, in which one spouse of each is genetically related to the child in question. While some States may already provide for such possibilities in their domestic law and practice, it is debatable to what extent it is appropriate for the Court to impose such arrangements on all of them, regardless of the evolution of domestic laws and policies in this field.

109. It would seem reasonable in our view not to deprive the Contracting States of any margin of appreciation in delicate and complex matters of family law on the grounds that in any individual circumstances the child’s best interests must be elevated from a “primary consideration” to the sole permissible one, on the basis of a literal understanding of the notion of “paramount”, to the exclusion of any general policy considerations prevailing under the relevant domestic law.

[1] The reference in section 30 to “assisted reproduction” is to the treatment offered to couples or single women who are unable to conceive a child themselves. It is the general understanding that the scope of section 30 is not limited to “assisted reproduction”, but that it applies to all women giving birth to a child, no matter how the child was conceived. On 10 November 2021, the Ministry of Social Affairs and Senior Citizens introduced a bill (L 65) to Parliament, proposing to delete the reference to “assisted reproduction” in section 30 of the Children Act.

[2] Report A/HRC/37/60, available under the link: A/HRC/37/60 (undocs.org)

[3] Paragraph 13.

[4] Paragraph 28.

[5] Paragraphs 51 and 75.

[6] CRC/C/OPSC/USA/CO/2, paragraph 29; CRC/C/IND/CO/3-4, paragraph 57(d); CRC/C/MEX/CO/4-5, paragraph 69(b); CRC/C/OPSC/USA/CO/3-4, paragraph 24; and CRC/C/OPSC/ISR/CO/1, paragraph 28.

[7] Article 1(a)