This part will concern the position of the ECHR in the face of various situations

existing after the birth of the child. Indeed, once the child is born several questions can then
arise: who will be the legal parents of the child? what will be the nationality of the child?
What will this child’s inheritance rights be? Recognition of a child born to a surrogate mother
in another state?

• First, we should first talk about legal parentage.

First, it should be noted that establishing legal parenthood for a child born under a
surrogacy agreement can be tricky. Indeed, during surrogacy, most countries recognize the
carrier of the child as its mother. Only some countries, mainly those which allow surrogacy
procedures, recognize the intended parent (s) as the parent (s) of the child.

In a recent judgment of May 18, 2021, the European Court of Human Rights (ECHR)
indicates that refusing to recognize two people as parents of a child born of surrogacy does
not violate the European Convention on Human Rights. the man. This is the case of Valdis
Fjôlnisdottir c/ Iceland. This case concerns Iceland's refusal to recognize the parental link of
two married women to a baby boy born to a surrogate mother in the United States, in 2013. In
Iceland, surrogacy being illegal, the two applicants were therefore not recognized as the
parents of the child, with whom neither of them has any biological bond.
According to the case law of the ECHR, recognition of the parentage link between a child and
its intended mother is not binding on the 47 member states of the Council of Europe, of which
it is the judicial arm. However, when this link is not recognized, other modalities must be
considered, such as adoption.

The ECHR has also spoken on the issue of the adoption of a child by one of the
partners of a homosexual couple. By a decision rendered by the Grand Chamber on
February 19, 2013, X and others c/ Austria, the European Court of Human Rights has just
completed and deepened its position on the adoption of a child by a homosexual couple by
indicating that a state cannot prohibit a homosexual co-parent of a child from adopting the
child when a heterosexual co-parent might do so. Here she is making a comparison between
the existing situation for a heterosexual couple and a homosexual couple, there should be no
discrimination based on sexual orientation to adopt a partner's child. It thus resumes its
position resulting from the "Gas et Dubois against France" judgment of March 15, 2012,
which specified that discrimination could only occur for people placed in an identical
situation.
The Court merely reiterates that the Judges must be able to examine the situations, on a case-
by-case basis, and rule only in the best interests of the child.
Following this judgment, Austria opened the adoption to homosexual co-parents in July 2013.

In the Mennesson case, the ECHR considered that the identity of young girls was
violated because they were deprived of the legal link with their biological father. The ECHR
recognizes the biological link with the father but not with the intended mother. The court
considers that the refusal to transcribe the link with the biological father would be an attack
on the identity of the young girls. Nothing is said about parentage. A transcription with the
paternal filiation is imposed by the court. The option left to the intended mother was adoption.
What the ECHR emphasizes is the interest of the child to have a recognized parentage in the
French civil registry.
 As regards the relationship between a parent and his child, it is now characterized, in
domestic law as in European law, by the diversity of its basis. It also seems that the European
judge is less demanding as to the effectiveness of this relationship.

• The ECHR has also taken a position on the nationality of the child

The judgment of the European Court of Human Rights in the Genovese case is far
from any idea of continuity. In the present case, the applicant was born in Scotland to a
British mother and a Maltese father. He refuses to recognize him and then to establish and
maintain any relationship with him. The parentage link is nevertheless established
scientifically and judicially. The applicant's mother then requested that he be granted Maltese
citizenship. However, under the applicable Maltese law at the time, among children born out
of wedlock, only those whose mother was Maltese were eligible for Maltese citizenship. In
substance, the Court's solution is hardly surprising and beyond doubt. How can we defend
today legislation that distinguishes between children depending on whether their parents are
married or live in a common-law union? It is therefore logical that the Court finds that
Maltese law was discriminatory from the point of view of the child.
But we must also cite the Mennesson v France case, which should be cited in matters
of nationality for children born of surrogacy. In this judgment of June 26, 2014, the ECHR
condemns France for having practiced a policy of refusing to transcribe the birth certificates
of children born abroad in the context of surrogacy.
This solution of the French jurisdiction was totally contrary to the interests of children who
could, for example, find themselves stateless. The Court considered that this refusal to
transcribe was contrary to Article 8 guaranteeing respect for the private and family life of the
children.
It is now accepted that children from GPA must receive the French nationalized. The
transcription must also be done for the intended father, provided that the biological link exists,
without this link being verified.

• We must also talk about the issue of the right of access and custody of children

Here it is necessary to quote the Anayo case. The Court considers that the refusal of
the domestic courts to allow Mr. Anayo to have the slightest contact with his children
constituted an interference with the rights of the person concerned guaranteed by Article 8. In
fact, it is a question of a man. having had twins with a married woman whose husband legally
recognized the twins. Although the applicant has never cohabited with the twins and has never
met them, and their relationship is not sufficiently followed to qualify as existing “family
life”, the Court has alreadỳ said that a planned family life could come within the scope of
Article 8 when the fact that it did not yet exist was not attributable to the applicant. Such is
the case with Mr Anayo, who was unable to have any contact with the twins simply because
their mother and legal father refused to let him see them.
Mr. Anayo has shown a genuine concern for children by expressing before and after birth a
desire to have contact with them and by promptly initiating legal action to that end.
For the ECHR, in a good number of states, the domestic courts can examine whether or not a
relationship between a biological father and his child would be in the best interests of the
child and, if so, grant the father visiting rights.

Beyond the legal recognition of the kinship bond on which family life is
founded, the right to respect for family life imposes on States the obligation to concretely
protect the parent-child relationship. This obligation translates into the recognition, for the
benefit of the parent and their child, of a right to be together
In the Jiaoqin Zhou v Italy case, the ECHR indicated that the Italian authorities failed to
fulfill their obligations before considering a solution to the severing of the family link and did
not make adequate and sufficient efforts to ensure that the the applicant's right to live with her
child, thus disregarding her right to respect for her family life, guaranteed by Article 8.

• In terms of inheritance, the position is clearly defined, European non-biological children

have the same inheritance rights as biological children.

• Regarding the recognition of surrogacy that takes place abroad

Once again, the Mennesson case provides a key point on this point. If she has
recognized the parentage of the father, it is different with the mother.
First of all, it is necessary to indicate that the Court of Cassation in plenary assembly on
October 5, 2018 had to rule on the Mennesson case a second time because of the decision of
the ECHR of 2014. For the first time, the court requests an opinion from the ECHR. She asks
the ECHR whether the transcription of civil status limited to the biological father and simple
adoption by the intended mother would suffice.

The European Court of Human Rights responded on April 10, 2019 in two points to the
advisory request of the Court of Cassation:
- The right to respect for the private life of the child, within the meaning of Article 8 of the
European Convention on Human Rights, requires that domestic law offer the possibility of
recognizing a bond of parentage between this child. child and the intended mother, designated
in the birth certificate legally established abroad as the "legal mother";
- The right to respect for the private life of the child, within the meaning of article 8 of the
European Convention on Human Rights, does not require that this recognition be done by the
transcription on the registers of the State civil birth certificate legally established abroad; it
can be done by another means, such as the adoption of the child by the intended mother, on
condition that the modalities provided for by domestic law guarantee the effectiveness and
speed of its implementation, in accordance with in the best interests of the child.

This applies to all countries that are under the jurisdiction of the ECHR.
States have a wide margin of appreciation in the choice of means to protect the parent-child
relationship. It is, however, up to each of them to acquire an adequate and sufficient legal
arsenal to ensure compliance with the positive obligation’s incumbent upon it under Article 8
of the Convention, consisting in particular in allowing the maintenance of links of the child
with each of its parents.