K.K. and Others v. Denmark (European Court of Human Rights)

Information Note on the Court’s case-law
December 2022

K.K. and Others v. Denmark – 25212/21

Judgment 6.12.2022 [Section II]

Article 8
Article 8-1
Respect for family life
Respect for private life

Refusal to allow adoption of children born abroad via surrogacy by wife of their genetic father, despite no other possibilities of recognition of a legal parent-child relationship: violation (children); no violation (intended mother)

No obstacles to enjoying family life by children born abroad via surrogacy and their genetic father’s wife, who was granted joint custody but not adoption : no violation

Facts – In December 2013 a surrogate mother in Ukraine gave birth to twins, the second and third applicants, following a surrogacy agreement with the first applicant and her husband, who were the intended parents of the children. The husband was the biological father of the children. The Ukrainian authorities issued birth certificates for the children, naming the first applicant as their mother and her husband as their father. The children were brought to Denmark in February 2014.

In Denmark, under the Children Act, the woman giving birth to a child is the legal parent of the child (also where the egg from which the child was developed was donated to the mother). Accordingly, the surrogacy agreement stating that the first applicant was to be named as the mother of the two children on the birth certificates had no legal effect in Denmark. However, the children obtained Danish nationality because of their family ties to their father. In addition, in March 2018, the authorities approved the first applicant and her husband being given joint custody of the children. However, they refused to grant the first applicant adoption of the children as a step-parent (stepchild adoption), since the surrogate mother had been paid to consent to adoption. The authorities relied on Section 15 of the Adoption Act, which contained an absolute ban on granting adoption if the person required to consent had been paid or received remuneration. The Supreme Court upheld that decision.

Law – Article 8:

(a) Whether there was a violation of the applicants’ right to respect for family life – The Supreme Court had proceeded on the assumption that the applicants’ right to respect for their family life, in so far as it had been affected, had been outweighed by the public interests at stake. The Court saw no reason to hold otherwise. Moreover, it did not appear that the applicants had encountered any obstacles or practical difficulties in enjoying family life together on account of the refusal in question. The applicants had lived together uninterruptedly since February 2014, when the twins had been brought to Denmark. The children had immediately obtained Danish nationality. Lastly, in March 2018 the authorities had approved the first applicant and her husband being given joint custody of the children. Accordingly, and having regard to the margin of appreciation afforded to the respondent State, the conclusions of the courts had struck a fair balance between the interests of the applicants and those of the State.

Conclusion: no violation (unanimously).

(b) Whether there was a violation of the applicants’ right to respect for private life – The Court referred to the general principles set out in Mennesson v. France, and Paradiso and Campanelli v. Italy [GC].

In addition, in respect of the margin of appreciation in relation to 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, the Court recalled its recent finding in C.E. and Others v. France that two factors carried particular weight: the primary interests of the child, and the consequently reduced margin of appreciation of the State.

Moreover, the Court referred to the 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].

(i) First applicant’s right to respect for her private life – The Supreme Court appeared to have taken it for granted that the first applicant’s right to respect for her private life, being her right to personal development through her relationship with the children, and her interest in continuing that relationship with them, in so far as it had been affected, had been outweighed by the public interests at stake. The Courts saw no reason to hold otherwise.

Conclusion: no violation (unanimously).

(ii) Second and third applicants’ right to respect for their private life – The Court was fully aware that the Supreme Court had a difficult task of having to weigh the best interests of the children in the present case against the general interests underlying section 15 of the Adoption Act, notably to avoid commercial exploitation of surrogate mothers and the risk of children being turned into a commodity. The latter provision had been given its current wording in 1997 in order to enable Denmark to ratify the Hague Convention. Nevertheless, referring in particular to Mennesson v. France and the Advisory opinion, the Supreme Court had found that that provision did not, as required, take the best interests of the child into account and, therefore, needed to be amended. In the Supreme Court’s view, pending the entry into force of the requisite amendment, an individual assessment had to be carried out as to whether refusing an application for adoption would be contrary to Article 8. Consequently, section 15, as interpreted by the Supreme Court, allowed stepchild adoption of children born through a surrogacy agreement, if the adoption was in the best interests of the child and a refusal would contravene Article 8. The Supreme Court had carried out its own assessment of the present case on the basis of those premises, examining the individual circumstances of the persons involved.

The Supreme Court had been unanimous in finding that it would be in the children’s interest to be adopted by the first applicant in order for their identity as her children to be legally recognised. However, having regard to the various specific cumulative solutions provided for by Danish law, including that the first applicant had been given joint custody of the children, and that she could retain custody in the event of legal separation or divorce or the death of the biological father, the majority found “nothing to suggest that it would have a significant impact on the private life of the children if the first applicant had not been granted adoption”.

In its Advisory opinion, the Court had found that the child’s right to respect for private life within the meaning of Article 8 did not require a specific form of legal recognition such as entry in the register of births, marriages and deaths of the birth certificate legally established abroad; “another means, such as adoption of the child by the intended mother, might be used provided that the procedure laid down by domestic law ensured that it could be implemented promptly and effectively, in accordance with the child’s best interests.”

The question therefore arose, which other means – if not adoption of the child by the intended parent – could satisfy the requirement of legal recognition in the present case.

In its judgments and decisions adopted subsequent to the Advisory opinion (Valdís Fjölnisdóttir and Others v. Iceland, A.M. v. Norway, C.E. and Others v. France, and H v. the United Kingdom (dec), the Court had adopted a holistic approach, taking into account not only the situation when the child had been born or even when it had considered the complaint, but also whether there had been a possibility for subsequent legal recognition. Moreover, the Court had determined in concreto the effect of the interference on the applicants’ right to private life. It was noteworthy that the above-mentioned cases had not concerned a refusal to adopt decided on by the authorities. In those cases, either the parties had not lodged a request for adoption, or it had been withdrawn, or the granting of such depended on the consent of the biological parent. Nevertheless, it appeared from their specific circumstances, that “another means” could be putting the child into foster care with the intended mothers, or issuing a court order for the exercise of joint parental responsibility, or jointly recognising a child who had a legal parent-child relationship only with the woman who had given birth.

In the present case, the authorities had refused to let the first applicant adopt the second and third applicants. Instead, the first applicant had been granted shared custody with the biological father. Moreover, Danish law had provided for various legal possibilities. Thus, in the event of legal separation or divorce or the death of the biological father, the first applicant could retain custody under the general rules of the Parental Responsibility Act, and she would be able to make provision for the children in her will under the rules of the Inheritance Act, and for inheritance tax purposes the children would be in the same position as if they were her children.

The fact remained, though, that besides adoption, domestic law did not provide for other possibilities of recognition of a legal parent-child relationship with the intended mother. Accordingly, when they had been refused adoption, they had been de facto refused being recognised as having a legal parent-child relationship. Such lack of recognition per se had a negative impact on the children’s right to respect for their private life, in particular because it had placed them in a position of legal uncertainty regarding their identity within society.

In terms of inheritance, although the first applicant could make a will to that effect, the children would not be her heirs by virtue of a legal parent-child relationship, unlike the situation for other children in Denmark.

The children had lived with the first applicant, being their intended mother, and their biological father, since they had arrived in Denmark in February 2014, that is almost seven years when the Supreme Court had passed its judgment. The children had thus for a significant time considered them both to be their parents, and it had been clearly in their best interest to obtain the same legal relationship with the first applicant as they had with their father. Furthermore, there had been no opposing parental interests between the first applicant and the biological father of the children, which might be the case, when intended parents in surrogacy arrangements broke up and new partners came into the picture. Nor had there been any other persons claiming parentage, which might be the case in assisted reproduction, when a number of different individuals might have been involved in the child’s conception.

The Court was therefore not convinced that in the particular circumstances of the present case, the cumulative solutions provided for by Danish law had such an impact on the private life of the children that they could make up for the refusal to let them be adopted by the first applicant. In addition, the Court was not satisfied that the authorities of the respondent State, when refusing to let the second and third applicants be adopted by the first applicant, had struck a fair balance between, on the one hand, the specific children’s interest in obtaining a legal parent-child relationship with the intended mother, and, on the other, the rights of others, namely those who, in general and the abstract, had risked being negatively affected by commercial surrogacy arrangement.

Conclusion: violation (four votes to three).

Article 41: EUR 5,000 in respect of non‑pecuniary damage to each of the second and third applicants.

(See also Mennesson v. France, 65192/11, 26 June 2014, Legal summary; Paradiso and Campanelli v. Italy [GC], 25358/12, 24 January 2017, Legal summary; 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], P16-2018-001, French Court of Cassation, 10 April 2019, Legal summary; A.M. v. Norway, 30254/18, 24 March 2022; C.E. and Others v. France, 29775/18 and 29693/19, 24 March 2022, Legal summary; Valdís Fjölnisdóttir and Others v. Iceland, 71552/17, 18 May 2021, Legal summary; H v. the United Kingdom (dec.), 32185/20, 31 May 2022)

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