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Poland does not have to recognise legal effects of foreign surrogacy agreement – European Court of Human Rights confirms

Published: 23.12.2021

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· The European Court of Human Rights has rejected a complaint by a male couple regarding the refusal to grant Polish citizenship to twins in their care.

· One of them was the biological father of the children, while the mother was a surrogate who had given up her parental rights.

· Surrogacy is prohibited in Poland, so the agreement made with the children's mother in the US had to be declared ineffective.

· The Masovian Voivode did not grant citizenship to the twins because the men refused to produce a valid birth certificate showing the identity of the children's mother and father.

· In the proceedings before the European Court of Human Rights, the Ordo Iuris Institute intervened as a friend of the court, pointing out that the State is entitled to refuse recognition of the legal effects of a surrogacy contract which is contrary to national law.

In 2010, two men in a homosexual relationship entered into a surrogacy arrangement with an American woman residing in the state of California. The woman agreed to conceive and give birth by undergoing in vitro fertilisation using the sperm from one of the men and an egg from an anonymous donor. She ultimately gave birth to twins, transferring parental rights to both men, who were registered by a Californian court as their parents.

The men went to live with their children in Israel. As one of them held Polish citizenship, in 2012 he applied to the Masovian Voivode for confirmation of Polish citizenship for his children, submitting a copy of the Californian court decision indicating that he and the other man with whom he was in the relationship were the parents of the twins. The Voivode requested the submission of a valid birth certificate indicating the children's mother and father, but the applicant refused. Consequently, the Voivode issued a negative decision, indicating that from the perspective of the Polish law, surrogacy agreements are ineffective. The mother of the child is the woman who gave birth to the child, and the father is her spouse – in accordance with the presumption of paternity of the husband adopted in the family law. The Voivode's decision was upheld by the Minister of Internal Affairs and the administrative courts.

In 2015, the men filed a complaint with the European Court of Human Rights, alleging that the Polish authorities had violated their right to respect private and family life (Article 8 of the European Convention on Human Rights) by refusing legal recognition of their relationship with the twins. The Ordo Iuris Institute intervened in the case and presented a friend-of-the-court opinion, pointing out that the Convention does not guarantee the right to recognition of the legal effects of a surrogacy contract in a situation where surrogacy is illegal under national law.

At the end of 2021, the Strasbourg Tribunal ruled that the complaint was inadmissible. The Court pointed out that the men had not put forward any circumstance demonstrating the negative consequences or practical difficulties connected with the refusal to grant Polish nationality to the children in their care. Moreover, none of them had ever lived in Poland.

‘The Tribunal's judgment confirms that the admissibility of a complaint depends on the demonstration of concrete harm suffered as a result of the State's action. In the future, this should limit the number of complaints filed by activists who try to challenge provisions of national law which they find inadequate – such as those defining a mother as the woman who has given birth to the child – even if they do not directly affect their lives’ – points out Weronika Przebierała, the Head of the International Law Centre at the Ordo Iuris Institute.

The case S.-H. v. Poland, order of the European Court of Human Rights (ECtHR) of 16 November 2021.

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