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Iceland did not break the law by refusing to register two ‘mothers’

Published: 01.07.2021

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• The Strasbourg Court rejected the complaint of a female couple claiming that their right to respect for family life had been violated by Iceland’s refusal to recognise them as the mothers of a child born to a commercial arrangement with an American surrogate.

• According to the Icelandic law, the mother of a child is the woman who has given birth to him or her and surrogate motherhood is prohibited. The couple who filed the complaint had violated the prohibition by buying the surrogacy ‘service’ in the USA and later bringing the child to Iceland.

• Iceland refused to recognise the female couple as the child’s parents but granted them custody of the child. After the couple separated, the authorities extended custody of the child to their new respective partners. Thus, the boy de facto has four ‘mothers’, even though they are not formally his parents.

• The Ordo Iuris Institute submitted an opinion to the Court claiming inconsistency of surrogacy with women's and children's rights, as well as illegality of the practice of using foreign surrogacy to evade the prohibition. The ECHR recognised some of the claims made by the Institute.

“The Court’s judgment is a partial success. On the one hand, the Court rightly observed that the prohibition of surrogacy is supposed to protect women's and children's rights and that States may recognise the woman who has given birth to a child as the mother and are not obliged to acknowledge foreign birth certificates that provide false information about parents. Unfortunately, though, the Court also approved evasion of the prohibition of surrogacy by determining that if a couple brings a child from abroad to their own country then, even if they are not relatives, the State should, as a rule, grant them some form of custody. Contrary to our opinion, the Court also determined that Article 8 of the Convention protects potential family ‘relationships’ that can hypothetically develop in the future”, says Karolina Pawłowska, Director of the Ordo Iuris International Law Centre.

The European Court of Human Rights ruled that the prohibition of surrogate motherhood is compliant with the European Convention on Human Rights as it protects women's rights and children's rights. The Court also determined that couples who use a surrogacy service cannot later request to be recognised as the parents of the child conceived through surrogacy if they are not related by blood. The Ordo Iuris Institute had earlier intervened in this case offering a similar opinion as amicus curiae.

The case involved two women living in a same-sex ‘marriage’ in Iceland. Using a surrogacy agency, they paid an American woman from the state of California to undergo in vitro fertilisation and deliver a child for them. In 2013, a boy, conceived from the ovum and sperm of anonymous donors, was born and the biological mother relinquished her parental rights to the above-mentioned couple. The women took the child back to Iceland, where they applied for his registration in order to ascertain their parental rights and to register the child as an Icelandic citizen. The Icelandic authorities refused to register the boy on the grounds that he was the son of the American woman and was not in any way related to the applicants. According to Icelandic law, the mother of a child is the woman who has given birth to the child, and, in the case, the mother was the above-mentioned US citizen. Surrogacy is illegal in Iceland. The Icelandic office for children took formal custody of the boy, but at the same time granted the women temporary adoption rights until final resolution of the case. In the meantime, the women divorced and later formed respective new relationships. Finally, the two women and their respective ‘wives’ were granted permanent custody of the boy, who, de facto, has four ‘mothers’, even though they are not formally his parents.

Because of that, in 2017, the ex-couple brought a complaint to the European Court of Human Rights in Strasbourg. They claimed that the Icelandic authorities had violated their right to respect for family life by refusing to recognise them as the boy’s parents (Article 8 of the European Convention on Human Rights).

The Ordo Iuris Institute offered its amicus curiae opinion to the European Court of Human Rights, stating that the practice of surrogate motherhood violates human rights and treats the surrogate woman and her child as objects. The Institute claimed that States have the right to prohibit surrogacy and refuse to recognise the legal consequences of foreign birth certificates containing false information about parents (claiming that persons who are not related to a child are the child’s parents). A child has the right to know his or her biological roots and the birth certificate should be the source of information about the child’s parents. Also, the Institute noted that Article 8 of the Convention serves to protect actual family bonds rather than potential relations that can develop between a newborn child and a couple of unrelated individuals.

This year, the Strasbourg Court issued a judgment stating that the Icelandic authorities had not violated Article 8 of the Convention by refusing to register the two women as the child’s parents. The Court noted that Iceland had the right to prohibit surrogacy in order to protect women’s interests as well as the child’s right to know about his or her natural origins. The Court also determined that there had been no violation of the right to respect for family life since the child had remained under the applicants’ custody from the beginning of his stay in Iceland.

Case of Valdís Fjölnisdóttir and others v. Iceland, Judgment of the ECHR of 18 May 2021.

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