Guide on Article 8 of the Convention – Right to respect for private and family life
251. The Court has held that the introduction of a time-limit for instituting paternity proceedings is justified by the desire to ensure legal certainty and thus not per se incompatible with the Convention. However, in Çapın v. Turkey the Court ruled that a fair balance needs to be struck between the child who has the right to know his or her identity and the putative father’s interest in being protected from allegations concerning circumstances that date back many years (§ 87). In that case, the Court found that the national courts had not properly balanced the competing interests at stake because they had not assessed the exceptional circumstances of the case namely, the applicant’s claim that he had been told as a child that his father was dead and that, once he was eighteen years of age, he had left his home country and lived abroad for twenty-five years, estranged from his mother and his relatives (§§ 75-76). The Court also reiterated that everyone has a vital interest to know the truth about his or her identity and to eliminate any uncertainty about it. 252. In Odièvre v. France [GC], the applicant, who was adopted, requested access to information to identify her natural mother and natural family, but her request was rejected under a special procedure which allowed mothers to remain anonymous. The Court held that there was no violation of Article 8 as the State had struck a fair balance between the competing interests (§§ 44-49). 253. However, where national law did not attempt to strike any balance between the competing rights and interests at stake, the inability of a child abandoned at birth to gain access to nonidentifying information concerning his or her origins or the disclosure of the mother’s identity was a violation of Article 8 (Godelli v. Italy, §§ 57-58).
3. Legal parent-child relationship 42 254. Respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship (Mennesson v. France, § 96). Therefore, Article 8 protects children born to a surrogate mother outside the member State in question, whose legal parents according to the foreign State could not register as such under domestic law. The Court does not require that States legalise surrogacy and, furthermore, States may demand proof of parentage for children born to surrogates before issuing the child’s identity papers. However, the child’s right to respect for his or her private life requires that domestic law provide a possibility of recognition of the legal relationship between a child born through a surrogacy arrangement abroad and the intended father, where he is the biological father (Mennesson v. France; Labassee v. France; Foulon and Bouvet v. France). 255. In its first Advisory Opinion, the Court clarified that where a child is born through a gestational surrogacy arrangement abroad, in a situation where he or she was conceived using the eggs of a third-party donor, and the intended mother is designated in a birth certificate legally established abroad as the “legal mother”, the child’s right to respect for his or her private life also requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother. The choice of means by which to achieve recognition of the legal relationship between the child and the intended mother falls within the State’s margin of appreciation. However, once the relationship between the child and the intended mother has become a “practical reality” the procedure laid down to establish recognition of the relationship in domestic law must be capable of being “implemented promptly and efficiently” (Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy ar42
See Medically assisted procreation/right to become genetic parents.
European Court of Human Rights
62/161
Last update: 31.08.2021
