Guide on Article 8 of the Convention – Right to respect for private and family life
mestic legislation introduced a difference in treatment based on sexual orientation and thus violated Article 8 (§§ 79-84). 317. In a case where the applicant sought to have her identity number changed from a male to a female one after having undergone gender reassignment surgery, family life was implicated by the fact that full recognition of her new gender required the transformation of her marriage into a registered partnership (Hämäläinen v. Finland [GC], §§ 60-61). However, the Court found that the conversion of the applicant’s marriage into a registered partnership would not constitute a violation of family life under Article 8 (§ 86).
2. Parents Medically assisted procreation/right to become genetic parents 318. Like the notion of private life (see “Reproductive rights” above), the notion of family life incorporates the right to respect for decisions to become a parent in the genetic sense (Dickson v. the United Kingdom [GC], § 66; Evans v. the United Kingdom [GC], § 72). Accordingly, the right of a couple to make use of medically assisted procreation comes within the ambit of Article 8, as an expression of private and family life (S.H. and Others v. Austria [GC], § 82). However, the provisions of Article 8 taken alone do not guarantee either the right to found a family or the right to adopt (E.B. v. France [GC], § 41; Petithory Lanzmann v. France (dec.), § 18). In addition, however worthy an applicant’s personal aspiration to continue the family line, Article 8 does not encompass the right to become a grandparent (Petithory Lanzmann v. France (dec.), § 20). 319. The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation (S. H. and Others v. Austria [GC], § 100). However, they are not in themselves sufficient reasons for a complete ban on a specific artificial procreation techniques such as ovum donation; notwithstanding the wide margin of appreciation afforded to the Contracting States, the legal framework devised for this purpose must be shaped in a coherent manner which allows the different legitimate interests involved to be adequately taken into account (ibid.). 320. The Court found no violation of Article 8 where domestic law permitted the applicant’s former partner 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 (Evans v. the United Kingdom [GC], § 82). 321. Article 8 does not require States to legalise surrogacy (see above). Therefore, the refusal to recognise a legal relationship between a child born through a surrogacy arrangement abroad and the intended parents does not violate the parents’ and children’s right to family life if this inability to obtain recognition of the legal parent-child relationship does not prevent them from enjoying their family life together. In particular, there is no violation of their right to family life if the family is able to settle in the respective member State shortly after the birth of their children born abroad and if there is nothing to suggest that the family is at risk of being separated by the authorities on account of their situation (Mennesson v. France, §§ 92-94; Labassee v. France, §§ 71-73; Foulon and Bouvet v. France, § 58). In addition, the Court found that the Convention could not oblige States to authorise entry to their territory of children born to a surrogate mother without the national authorities having a prior opportunity to conduct certain relevant legal checks (D. and Others v. Belgium, § 59). Therefore, an application concerning the refusal to provide the applicants with a travel document to
European Court of Human Rights
76/161
Last update: 31.08.2021
