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ECtHR: the illegal "acquisition" of parental rights from a surrogate does not give the right to adopt a child

Published: 04.08.2022

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· The European Court of Human Rights dismissed the complaint of a Norwegian woman who wanted to adopt a child of her ex-cohabitant, pointing out that she had previously "acquired" parental rights in the US from a surrogate.

· In Norway, the so-called surrogate motherhood is forbidden, therefore the local authorities did not recognize the consequences of the biological mother's renunciation of parental rights.

· The Strasbourg Court dismissed the Norwegian woman's complaint, stating that a woman unrelated to the child who had "acquired" the child through an illegal surrogacy contract could not claim parental rights.

· The Court thus reaffirmed the competence of states to combat the use of women as surrogates.

Surrogacy (surrogacy) is an agreement under which a woman undertakes to get pregnant by IVF, give birth to a child and transfer it to principals, usually infertile couples, for free or in return for remuneration. As a rule, artificial insemination is carried out using the gametes of the ordering party (sperm and egg), but sometimes it happens that gametes of an anonymous donor are used.

In a case recently decided by the ECtHR, the applicant and her cohabitant from Norway left for the United States, where they placed an order for a child with the so-called foster mother. The child was conceived by an in vitro procedure using an egg from an anonymous donor and the applicant's partner's sperm, and was born to a surrogate mother. Under the agreement, the mother waived parental rights to the principals and the applicant and her partner were entered as parents on the birth certificate issued by the Texas state authorities. In the meantime, the applicant and her partner broke up. In Norway, surrogate is illegal - so the authorities have not recognized the legal consequences of surrogate parental rights. The Norwegian woman could therefore obtain the status of the child's parent only through adoption, but the child obviously required the consent of the child's father. In the applicant's opinion, she should have the right to adopt the child, even if the father explicitly opposed her, which was to result from her right to respect for private life (Article 8 of the European Convention on Human Rights). The Tribunal did not agree with it and stated that there had been no violation of Art. 8 of the ECHR.

- This judgment is, in principle, good news, because it confirms the competence of states to combat the practice of surrogacy, which is offensive to the dignity of women and children. If someone circumvents the national law prohibition of using women as a so-called a surrogate, ordering the conception of a child abroad, the country of origin has the right to refuse to recognize the legal consequences of such an agreement. However, the Tribunal in Strasbourg differentiates between a client who is not related to the child and a related client whose gametes were used in in vitro fertilization. From the point of view of the ECtHR's jurisprudence, in principle, only the former is entitled by public authorities to refuse to recognize parental rights, while the latter cannot be refused, said Weronika Przebierała, director of the International Law Center of the Ordo Iuris Institute.

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