Factsheet – Reproductive rights

April 2019
This factsheet is not exhaustive and does not bind the Court

Reproductive rights

Access to abortion

Tysiąc v. Poland

20 March 2007

The applicant was refused a therapeutic abortion, after being warned that her already severe myopia could worsen if she carried her pregnancy to term. Following the birth of her child, she had a retinal haemorrhage and was registered severely disabled.

The European Court of Human Rights found that the applicant had been denied access to an effective mechanism capable of determining whether the conditions for obtaining a legal abortion had been met, in violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

A., B. and C. v. Ireland (application no. 25579/05)

16 December 2010 (Grand Chamber)

Three women living in Ireland, who became pregnant unintentionally, complained that, because of the impossibility of obtaining a legal abortion in Ireland[1], they had to go to the United Kingdom for an abortion and that the procedure was humiliating, stigmatising and risked damaging their health. One of the applicants in particular, in remission from a rare form of cancer and unaware that she was pregnant, underwent checkups contraindicated in pregnancy. She understood that her pregnancy could provoke a relapse and believed that it put her life at risk.

_________________

1. Having or helping anyone to have an abortion was a criminal offence in Ireland. However there was a constitutional right to an abortion where there was a real and substantial risk to the life of the mother.

The Court found that Ireland had failed to implement the constitutional right to a legal abortion. There had therefore been a violation of Article 8 (right to respect for private and family life) of the Convention concerning the applicant in remission from cancer (the Court held there had been no violation of Article 8 concerning the other two applicants), because she was unable to establish her right to a legal abortion either through the courts or the medical services available in Ireland. The Court noted in particular the uncertainty surrounding the process of establishing whether a woman’s pregnancy posed a risk to her life and that the threat of criminal prosecution had a “significant chilling” effect both on doctors and the women concerned.

R.R. v. Poland (no. 27617/04)

26 May 2011

A pregnant mother-of-two – carrying a child thought to be suffering from a severe genetic abnormality – was deliberately denied timely access to the genetic tests to which she was entitled by doctors opposed to abortion. Six weeks elapsed between the first ultrasound scan indicating the possibility that the foetus might be deformed and the results of the amniocentesis, too late for her to make an informed decision on whether to continue the pregnancy or to ask for a legal abortion, as the legal time limit had by then expired. Her daughter was subsequently born with abnormal chromosomes (Turner syndrome[2]). She submitted that bringing up and educating a severely-ill child had been damaging to herself and her other two children. Her husband also left her following the birth of their third child.

__________________

2. A genetic condition, affecting around one in every 2,500 girls, in which the sufferer does not have the usual pair of two X chromosomes. They are also usually shorter than average and infertile. Other health problems can include kidney and heart abnormalities, high blood pressure, obesity, diabetes mellitus, cataract, thyroid problems, and arthritis. Some sufferers may also have learning difficulties.

The Court found a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention as the applicant, who was in a very vulnerable position, had been humiliated and “shabbily” treated, the determination of whether she should have had access to genetic tests, as recommended by doctors, being marred by procrastination, confusion and lack of proper counselling and information. The Court also found a violation of Article 8 (right to respect for private and family life) of the Convention because Polish law did not include any effective mechanisms which would have enabled the applicant to have access to the available diagnostic services and to take, in the light of their results, an informed decision as to whether or not to seek an abortion. Given that Polish domestic law allowed for abortion in cases of foetal malformation, there had to be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health be made available to pregnant women. The Court did not agree with the Polish Government that providing access to prenatal genetic tests was in effect providing access to abortion. Women sought access to such tests for many reasons. In addition, States were obliged to organise their health services to ensure that the effective exercise of the freedom of conscience of health professionals in a professional context did not prevent patients from obtaining access to services to which they were legally entitled.

P. and S. v. Poland (no. 57375/08)

30 October 2012

This case concerned the difficulties encountered by a teenage girl, who had become pregnant as a result of rape, in obtaining access to an abortion, in particular due to the lack of a clear legal framework, procrastination of medical staff and also as a result of harassment.

The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the applicants had been given misleading and contradictory information and had not received objective medical counselling; and, the fact that access to abortion was a subject of heated debate in Poland did not absolve the medical staff from their professional obligations regarding medical secrecy.

Pending application

A and B v. the United Kingdom (no. 80046/17)

Application communicated to the UK Government on 15 January 2019

The applicants – a mother and daughter – allege a failure by the authorities to provide for the first applicant, a United Kingdom citizen resident in Northern Ireland, to have an abortion in England free of charge under the National Health Service.

The Court gave notice of the application to the UK Government and put questions to the parties under Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private and family life) of the Convention.

Embryo donation and scientific research

Parrillo v. Italy

27 August 2015 (Grand Chamber)

This case concerned a ban under Italian Law no. 40/2004, preventing the applicant from donating to scientific research embryos obtained from an in vitro fertilisation which were not destined for a pregnancy. Under Article 1 (protection of property) of Protocol No. 1  to the Convention, the applicant complained that she was unable to donate her embryos, conceived through medically assisted reproduction, to scientific research and was obliged to keep them in a state of cryopreservation until their death. The applicant also considered that the prohibition in question amounted to a violation of her right to respect for her private life, protected by Article 8 of the Convention.

The Court, which was called upon for the first time to rule on  this issue, held that  Article 8 (right to respect for private and family life) of the Convention was applicable in this case under its “private life” aspect, as the embryos in question contained the applicant’s genetic material and accordingly represented a constituent part of her identity. The Court considered at the outset that Italy was to be given considerable room for manoeuvre (“wide margin of appreciation”) on this sensitive question, as confirmed by the lack of a European consensus and the international texts on this subject. It then noted that the drafting process for Law no. 40/2004 had given rise to considerable discussions and that the Italian legislature had taken account of the State’s interest in protecting the embryo and the interest of the individuals concerned in exercising their right to self-determination. The Court further stated that it was not necessary in this case to examine the sensitive and controversial question of when human life begins, as Article 2 (right to life) of the Convention was not in issue. Noting, lastly that there was no evidence that the applicant’s deceased partner would have wished to donate the embryos to medical research, the Court concluded that the ban in question had been necessary in a democratic society. In consequence, the Court held that there had been no violation of Article 8 of the Convention. Lastly, with regard to Article 1 (protection of property) of Protocol No. 1 to the Convention, the Court considered that it did not apply to the present case, since human embryos could not be reduced to “possessions” within the meaning of that provision. This complaint was accordingly dismissed.

Home birth

Ternovsky v. Hungary

14 December 2010

The applicant complained about being denied the opportunity to give birth at home, arguing that midwives or other health professionals were effectively dissuaded by law from assisting her, because they risked being prosecuted. (There had recently been at least one such prosecution.)

The Court found that the applicant was in effect not free to choose to give birth at home because of the permanent threat of prosecution faced by health professionals and the absence of specific and comprehensive legislation on the subject, in violation  of Article 8 right to respect for private and family life) of the Convention.

Dubská and Krejzová v. the Czech Republic

15 November 2016 (Grand Chamber)

This case concerned a law in the Czech Republic which made it impossible in practice for mothers to be assisted by a midwife during home births. The applicants, two women who wished to avoid unnecessary medical intervention in delivering their babies, complained that because of this law they had had no choice but to give birth in a hospital if they wished to be assisted by a midwife.

The Grand Chamber held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the national authorities had considerable room for manoeuvre when regulating the question of home births, a matter for which there is no European consensus and which involves complex issues of health-care policy as well as allocation of State resources. In the applicants’ case, the Grand Chamber considered that the Czech Republic’s current policy struck a fair balance between, on the one hand, mothers’ right to respect for their private life and, on the other, the State’s interest in protecting the health and safety of the child and mother during and after delivery. Moreover, since 2014 the Czech Government had taken some initiatives with a view to improving the situation in local maternity hospitals, notably by setting up a new governmental expert committee on obstetrics, midwifery and related women’s rights. Lastly, the Grand Chamber invited the Czech authorities to make further progress by continuing their constant review of the relevant legal provisions on home births, making sure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive rights.

Pojatina v. Croatia

4 October 2018

This case concerned Croatian legislation on home births. The applicant in the case was a mother who had given birth to her fourth child at home with the help of a midwife from abroad. She alleged in particular that, although Croatian law allowed home births, women such as her could not make this choice in practice because they were not able to get professional help.

The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It accepted that at first there might have been some doubt as to whether a system for assisted home births had been set up in Croatia. It therefore called on the authorities to consolidate the relevant legislation so that the matter is expressly and clearly regulated. However, it found that the applicant had clearly been made aware, through the letters from the Croatian Chamber of Midwives and the Ministry of Health which she had received while she had still been pregnant with her fourth child, that the domestic law did not allow assisted home births. It further found that the authorities had struck the right balance between the applicant’s right to respect for her private life and the State’s interest in protecting the health and safety of mothers and children. It pointed out in particular that Croatia was not currently required under the Convention to allow planned home births. There was still a great disparity between the legal systems of the Contracting States on home births and the Court was sensitive to the fact that the law developed gradually in this area.

Medically-assisted procreation

Evans v. United Kingdom

10 April 2007 (Grand Chamber)

The applicant, who was  suffering  from  ovarian  cancer,  underwent  in-vitro  fertilisation (IVF) with her then partner before having her ovaries removed.  Six  embryos were created and placed in storage. When the couple’s relationship ended, her ex-partner withdrew his consent for the embryos to be used, not wanting to be the genetic parent of the applicant’s child. National law consequently required that the eggs be destroyed. The applicant complained that domestic law permitted her former partner effectively to withdraw his consent to the storage and use by her of embryos created jointly by them, preventing her from ever having a child to whom she would be genetically related.

For the reasons given by the Chamber in its judgment of 7 March 2006, namely that the issue of when the right to life began came within  the State’s margin  of appreciation,  the Grand Chamber found that the embryos created by the applicant and her former partner did not have a right to life. It therefore held that there had been no violation of Article 2 (right to life) of the Convention. The Grand Chamber further considered that, given the lack of European consensus, the fact that the domestic rules had been clear and brought to the attention of the applicant and that they had struck a fair balance between the competing interests, there had been no violation of Article 8 (right to respect for private and family life) of the Convention. Lastly, the Grand Chamber held that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 of the Convention.

Dickson v. United Kingdom

4 December 2007 (Grand Chamber)

The applicant, a prisoner with a minimum 15-year sentence to serve for murder, was refused access to artificial insemination facilities to enable him to have a child with his wife, who, born in 1958, had little chance of conceiving after his release.

The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention as a fair balance had not been struck between the competing public and private interests.

S.H. and Others v. Austria (no. 57813/00)

3 November 2011 (Grand Chamber)

This case concerned two Austrian couples wishing to conceive a child through IVF. One couple needed the use of sperm from a donor and the other, donated ova. Austrian law prohibits the use of sperm for IVF and ova donation in general.

The Court noted that, although there was a clear trend across Europe in favour of allowing gamete donation for in-vitro fertilisation, the emerging consensus was still under development and was not based on settled legal principles. Austrian legislators had tried, among other things, to avoid the possibility that two women could claim to be the biological mother of the same child. They had approached carefully a controversial issue raising complex ethical questions and had not banned individuals from going overseas for infertility treatment unavailable in Austria. The Court concluded that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. However, it underlined the importance of keeping legal and fast-moving scientific developments in the field of artificial procreation under review.

Costa and Pavan v. Italy

28 August 2012

This case concerned an Italian couple who are healthy carriers of cystic fibrosis and wanted, with the help of medically-assisted procreation and genetic screening, to avoid transmitting the disease to their offspring.

The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the interference with the applicants’ right to respect for their private and family life had been disproportionate. It noted in particular the inconsistency in Italian law that denied the couple access to embryo screening but authorised medically-assisted termination of pregnancy if the foetus showed symptoms of the same disease. The Court also stressed the difference between this case, which concerned preimplantation diagnosis (PID) and homologous insemination[3], and that of S.H. and Others v. Austria (see above), which concerned access to donor insemination. Although the question of access to PID raised delicate issues of a moral and ethical nature, the legislative choices made by Parliament in the matter did not elude the Court’s supervision.

_________________

3. Using gametes from the couple (cf. donor insemination, using donated gametes).

Knecht v. Romania

2 October 2012

In July 2009 frozen embryos that the applicant had deposited with a private clinic were seized by the authorities due to concerns about the clinic’s credentials. The applicant subsequently experienced considerable difficulties in securing a transfer by the State of the embryos to a specialised clinic so that she might use them to become a parent by means of an IVF procedure. Before the Court, the applicant complained that this resulted in a breach of her right to a private and family life.

The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. The domestic courts had expressly acknowledged that the applicant had suffered a breach of her rights under Article 8 on account of the refusal by the authorities to allow the embryo transfer, and had offered her the required redress for the breach, which led to the transfer of the embryos in a relatively short time. Therefore the requisite steps had been taken to secure respect for the applicant’s right to respect for her private life.

Nedescu v. Romania

16 January 2018

The applicants, a married couple, alleged that they had not been able to recover embryos that had been seized by the prosecuting authorities in 2009 and that they had been prevented from having another child. The couple had won court orders in their favour to retrieve the embryos, but they had not been able to fulfil them.

In this case the Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding in particular that preventing the applicants from retrieving their embryos as ordered by the High Court of Cassation had constituted an interference with their right to respect for their private life which was not provided for by law.

Charron and Merle-Montet v. France

16 January 2018 (decision on the admissibility)

The applicants, a female married couple, complained that their request for medically assisted reproduction had been rejected on the grounds that French law did not authorise such medical provision for same-sex couples.

The Court declared the application inadmissible. It noted in particular that the Hospital’s decision rejecting the applicants’ request for access to medically assisted reproduction had been an individual administrative decision that could have been set aside on appeal for abuse of  authority  before  the  administrative  courts.  However, the applicants had not used that remedy. In the present case, noting the importance of the subsidiarity principle, the Court found that the applicants had failed to exhaust domestic remedies.

________________

Pending applications

Gauvin-Fournis v. France (no. 21424/16)

Application communicated to the French Government on 5 June 2018

Silliau v. France (no. 45728/17)

Application communicated to the French Government on 5 June 2018

Precautionary measures to protect a new-born baby’s health

Hanzelkovi v. the Czech Republic

11 December 2014

This case concerned a court-ordered interim measure requiring the return to hospital of  a new-born baby and its mother, who had just given birth and had immediately gone home, and the lack of any remedy by which to complain about that measure. The applicants – the mother and the child – complained of a violation of their right to respect for their private and family life, alleging that the measure whereby the child’s return to the hospital had been ordered a few hours after his birth was neither lawful nor necessary. They also complained about the lack of an effective remedy, as they had been unable to challenge the interim measure, and, not being able to obtain its annulment, they were not entitled to any redress or damages.

The Court held that there had been a violation of Article 8 (right to respect for private and family life), and a violation of Article 13 (right to an effective remedy) of the Convention. It reiterated in particular that the taking into care of a new-born baby at birth was an extremely harsh measure and that there had to be unusually compelling reasons for a baby to be removed from the care of its mother against her will immediately after the birth and following a procedure which involved neither the mother nor her partner. In the present case, the Court found in particular that when the domestic court was considering the interim measure it should have ascertained whether it was possible to have recourse to a less extreme form of interference with the applicants’ family life at such a decisive moment in their lives. It took the view that this serious interference with the applicants’ family life and the conditions of its implementation had had disproportionate effects on their prospects of enjoying a family life immediately after the child’s birth. While there may have been a need to take precautionary measures to protect the baby’s health, the interference with the applicants’ family life caused by the interim measure could not be regarded as necessary in a democratic society.

Prenatal medical tests

Draon v. France (no. 1513/03) and Maurice v. France (no. 11810/03)

6 October 2005 (Grand Chamber)

The applicants are parents of children with severe congenital disabilities which, due to medical errors, were not discovered during prenatal medical examinations. They brought proceedings against the hospitals concerned. A new law of 4 March 2002, introduced while their proceedings were pending, meant that it was no longer possible to claim compensation from the hospital/doctor responsible for life-long “special burdens” resulting from the child’s disability. The compensation they were awarded did not therefore cover those “special burdens”.

The Court found that the law in question was in violation of Article 1 (protection of property) of Protocol No. 1 to the Convention concerning proceedings which were pending when the law came into force.

A.K. v. Latvia (no. 33011/08)

24 June 2014

The applicant alleged that she had been denied adequate and timely medical care in the form of an antenatal screening test which would have indicated the risk of her foetus having a genetic disorder and would have allowed her to choose whether to continue the pregnancy. She also complained that the national courts, by wrongly interpreting the Medical Treatment Law, had failed to establish an infringement of her right to respect for her private life.

The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in its procedural aspect, finding that the domestic court had conducted the proceedings in an arbitrary manner and had failed to examine the applicant’s claim properly.

See also, more recently:

Eryiğit v. Turkey, judgment of 10 April 2018, concerning an erroneous prenatal diagnosis, where the Court held that there had been a violation of Article 8 of the Convention in its procedural aspect.

 

 

Presence of medical students during child birth and privacy rights
Konovalova v. Russia
9 October 2014

The applicant complained about the unauthorised presence of medical students during the birth of her child, alleging that she had not given written consent to being observed and had been barely conscious when told of such arrangements.

 

The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the relevant national legislation at the time of the birth of the applicant’s baby – 1999 – did not contain any safeguards to protect patients’ privacy rights. This serious shortcoming had been exacerbated by the hospital’s procedure for obtaining consent from patients to take part in the clinical teaching programme during their treatment. In particular, the hospital’s booklet notifying the applicant of her possible involvement in the teaching programme had been vague and the matter had in general been presented to her in such a way as to suggest that she had no other choice.

 

 

Sterilisation operations
Gauer and Others v. France
23 October 2012 (decision on the admissibility)

This case concerned the sterilisation for the purposes of contraception of five young women with mental disabilities who were employed at a local work-based support centre (Centre d’aide pour le travail – CAT). They submitted in particular that there had been  an interference with their physical integrity as a result of the sterilisation which had been carried out without their consent having been sought, and alleged a violation of their right to respect for their private life and their right to found a family. They further submitted that they had been subjected to discrimination as a result of their disability.

The Court found that the application had been lodged out of time and therefore declared it inadmissible pursuant to Article 35 (admissibility criteria) of the Convention.

G.B. and R.B. v. the Republic of Moldova (no. 16761/09)
18 December 2012

Giving birth to a child in May 2000, the first applicant, aged 32 at the time, had a Caesarean section, during which the obstetrician removed her ovaries and Fallopian tubes without obtaining her permission. She has been in treatment to counteract the effects of early menopause since 2001 and has had health problems ever since, including depression and osteoporosis. The courts found the obstetrician guilty of medical negligence, but eventually absolved him of criminal responsibility in 2005. The first applicant and her husband (the second applicant) brought civil proceedings against the hospital and the obstetrician, and were awarded damages in the amount of 607 euros. Before the Court, they complained of the first applicant’s sterilisation and of the low amount of compensation they had been awarded.

The Court considered that the first applicant had not lost her victim status and held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the amount of compensation awarded by the domestic courts was considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8 and required sufficient just satisfaction, as the devastating effects on the first applicant had made this a particularly serious interference with her Convention rights.

Csoma v. Romania
15 January 2013

The applicant complained that as a result of serious medical errors she was no longer able to bear children. While she was in her sixteenth week of pregnancy, the foetus was diagnosed with hydrocephalus and it was decided that the pregnancy should be interrupted. After complications following treatments the applicant received to induce abortion, her doctor had to remove her uterus and excise her ovaries in order to save her life. She alleged that failures in her treatment had endangered her life and had left her permanently unable to bear children. She further complained that, because of the deficiencies of the investigation, doctors’ liability had not been established.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that by not involving the applicant in

the choice of medical treatment and by not informing her properly of the risks involved in the medical procedure,  the  applicant  had  suffered  an  infringement  of  her  right to private life.

Forced sterilisation of Roma women

K.H. and Others v. Slovakia (no. 32881/04)

28 April 2009

Eight Slovak women of Roma ethnic origin found they were unable to conceive after having caesareans. Suspecting that they were sterilised without their knowledge during the operations, they sued the two Slovak hospitals concerned.

The Court found that the impossibility for the applicants to obtain photocopies of their medical records was in violation of Articles 8 (right to respect for private and family life) and 6 § 1 (access to court) of the Convention.

V.C. v. Slovakia (no. 18968/07)

8 November 2011

The applicant, of Roma ethnic origin, was sterilised in a public hospital without her      full and informed consent, following the birth of her second child. She signed  the consent form while still in labour,  without  understanding  what  was  meant  or  that the process was irreversible, and after having been told that, if she had a third child, either she or the baby would die. She has since been ostracised by the Roma community and, now divorced, cites her infertility as one of the reasons for her separation from her ex-husband.

The Court found that the applicant must have experienced fear, anguish and feelings of inferiority as a result of her sterilisation, as well as the way in which she had been requested to agree to it. She had suffered physically and psychologically over a long period and also in terms of her relationship with her then husband and the Roma community. Although there was no proof that the medical staff concerned had intended to ill-treat her, they had acted with gross disregard to her right to autonomy and choice as a patient. Her sterilisation had therefore been in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. The Court further held that there had been no violation of Article 3 as concerned the applicant’s allegation that the investigation into her sterilisation had been inadequate. Lastly, the Court found a violation of Article 8 (right to respect for private and family life) of the Convention concerning the lack of legal safeguards giving special consideration to her reproductive health as a Roma at that time.

N.B. v. Slovakia (no. 29518/10)

12 June 2012

In this case the applicant alleged that she had been sterilised without her full and informed consent in a public hospital in Slovakia.

The Court concluded that the sterilisation of the applicant had been in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It further held that there had been no violation of Article 3 as concerned the applicant’s allegation that the investigation into her sterilisation had been inadequate. It lastly found a violation of Article 8 (right to respect for private and family life) of the Convention.

I.G., M.K. and R.H. v. Slovakia (no. 15966/04)

13 November 2012

The case concerned three women of Roma origin who complained in particular that they had been sterilised without their full and informed consent, that the authorities’ ensuing investigation into their sterilisation had not been thorough, fair or effective and that their ethnic origin had played a decisive role in their sterilisation.

The Court held that there had been two violations of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, firstly on account of the first and second applicants’ sterilisation, and secondly in respect of the first and second applicants’ allegation that the investigation into their sterilisation had been inadequate. The Court further found a violation of Article 8 (right to respect for private and family life) in respect of the first and second applicants and no violation of Article 13 (right to an effective remedy) of the Convention.

As regards the third applicant, the Court decided to strike the application out of its list of cases, under Article 37 § 1 (c) of the Convention.

See also:

– R.K. v. the Czech Republic (no. 7883/08), decision (strike out) of 27 November 2012

– G.H. v. Hungary (no. 54041/14), decision (inadmissibility) of 9 June 2015

Surrogacy

Mennesson and Others v. France and Labassee v. France

26 June 2014

These cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment. The applicants complained in particular of the fact that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of parent-child relationships that had been legally established abroad.

In both cases the Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention concerning the applicants’ right to respect for their family life. It further held in both cases that there had been a violation of Article 8 concerning the children’s right to respect for their private life. The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr and Mrs Mennesson and Mr and Mrs Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society. The Court further noted that the case-law completely precluded the establishment of a legal relationship between children born as a result of – lawful – surrogacy treatment abroad and their biological father. This overstepped the wide margin of appreciation left to States in the sphere of decisions relating to surrogacy.

See also: Foulon and Bouvet v. France, judgment of 21 July 2016; Laborie v. France, judgment of 19 January 2017.

D. and Others v. Belgium (no. 29176/13)

8 July 2014 (decision – partly struck out of the list of cases; partly inadmissible)

This case concerned the Belgian authorities’ initial refusal to authorise the arrival on its national territory of a child who had been born in Ukraine from a surrogate pregnancy, as resorted to by the applicants, two Belgian nationals. The applicants relied in particular on Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the Convention.

In view of developments in the case since the application was lodged, namely the granting of a laissez-passer for the child and his arrival in Belgium, where he has since lived with the applicants, the Court considered this part of the dispute to be resolved and struck out of its list the complaint concerning the Belgian authorities’ refusal to issue travel documents for the child. The Court further declared inadmissible the remainder of the application. While the authorities’ refusal, maintained until the applicants had submitted sufficient evidence to permit confirmation of a family relationship with the child, had resulted in the child effectively being separated from the applicants, and amounted to interference in their right to respect for their family life, nonetheless, Belgium had acted within its broad discretion (“wide margin of appreciation”) to decide on such matters. The Court also considered that there was no reason to conclude that the child had been subjected to treatment contrary to Article 3 of the Convention during the period of his separation from the applicants.

Paradiso and Campanelli v. Italy

24 January 2017 (Grand Chamber)

This case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into with a Russian woman by an Italian couple (the applicants); it subsequently transpired that they  had  no  biological   relationship  with  the  child.  The  applicants  complained,     in particular, about the child’s removal from them, and about the refusal to acknowledge the parent-child relationship established abroad by registering the child’s birth certificate in Italy.

The Grand Chamber found, by eleven votes to six, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in the applicants’ case. Having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Grand Chamber held that a family life did not exist between the applicants and the child. It found, however, that the contested measures fell within the scope of the applicants’ private life. The Grand Chamber further considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children.       The Grand Chamber also accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the room for manoeuvre (“margin of appreciation”) available to them.

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, requested by the French COurt of Cassation (Request No. P16-2018-001)

10 April 2019 (Grand Chamber)

This case concerned the possibility of recognition in domestic law of a legal parent-child relationship between a child born abroad through a gestational surrogacy arrangement and the intended mother, designated in the birth certificate legally established abroad as the “legal mother”, in a situation where the child was conceived using the eggs of a third-party donor and where the legal parent-child relationship with the intended father has been recognised in domestic law.

The Court found that States were not required to register the details of the birth certificate of a child born through gestational surrogacy abroad in order to establish the legal parent-child relationship with the intended mother, as adoption may also serve as a means of recognising that relationship.

It held in particular that, in a situation where a child was born abroad through a gestational surrogacy arrangement and was conceived using the gametes of  the intended father and a third-party donor, and where the legal parent-child relationship with the intended father has been recognised in domestic law,

1.     the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”;

2.   the child’s right to respect for private life does not require such recognition to take the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad; another means, such as adoption of the child by the intended mother, may be used.

Pending applications

Braun v. France (no. 1462/18)

Application communicated to the French Government on 29 March 2018

Saenz and Saenz Cortes v. France (no. 11288/18)

Application communicated to the French Government on 29 March 2018

Maillard and Others v. France (no. 17348/18)

Application communicated to the French Government on 23 May 2018

Unborn child and right to life

Vo v. France

8 July 2004 (Grand Chamber)

Owing to a mix-up with another patient with the same surname, the applicant’s amniotic sack was punctured, making a therapeutic abortion necessary. She maintained that the unintentional killing of her child should have been classified as manslaughter.

The Court held that there had been no violation of Article 2 (right to life) of the Convention. It found that it was not currently desirable or possible to rule on whether an unborn child was a person under Article 2 of the Convention. And, there was no need for a criminal law remedy; remedies already existed allowing the applicant to prove medical negligence and to seek compensation.

Use of surgical symphysiotomy

Farrell v. Ireland (no. 62007/17), O’Sullivan v. Ireland (no. 61836/17) and Madden v. Ireland (no. 61872/17)

Applications communicated to the Irish Government on 18 March 2019

These cases concern the use of surgical symphysiotomy[4] in Irish maternity hospitals in the 1960s.

The Court gave notice of the applications to the Irish Government and put questions to the parties under Article 3 (prohibition of inhuman or degrading treatment), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 35 (admissibility criteria) of the Convention.

_______________

4. A surgical symphysiotomy involves partially cutting through the fibres of the pubis symphysis (the joint uniting the pubic bones) so as to enlarge the capacity of the pelvis. The procedure allows the pubis symphysis to separate so as to facilitate natural childbirth where there is a mechanical problem.

Texts and documents

See in particular:

– Bioethics and the case-law of the Court, research report prepared by the Research and Library Division (Directorate of the Jurisconsult) of the Court

Hits: 21

Rating: 5.0/5. From 1 vote.
Please wait...

Leave a Reply

Your email address will not be published.

*

code