The European Court of Human Rights (ECHR) on Tuesday approved the decision of the Icelandic authorities not to recognize "
a parental link
" between a couple of women and a child born of a surrogacy abroad, to the extent where "
family life
" had been preserved.
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The court had been seized by this couple of married Icelandic women, "
intending parents
" of a boy born by gestation for surrogate (surrogacy) in the United States. The two women had applied for Icelandic registration of the boy as their son, and as an Icelandic citizen. If the child had indeed obtained Icelandic nationality, the two women, having no biological link with him, had not been registered as his parents, surrogacy being prohibited in Iceland.
The child had been the subject of a placement measure in "
family care
" with the female couple. They had also been able to initiate an adoption process, which was interrupted when they had divorced. Hearing this case, the ECHR ruled that there had been no violation of the right to respect for private and family life, guaranteed by the European Convention on Human Rights. The European magistrates underlined that the Icelandic State "
had taken measures to protect the family life of the applicants
". They also recalled that States had a “
margin of appreciation
” given the “
ethical questions raised by surrogacy
”.
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 general and absolute impossibility
" of obtaining recognition of the link between a child born of a surrogacy performed abroad and the intended mother "
is not reconcilable with the best interests of the child
" , underlines the ECHR.
