France to request ECtHR opinion on transcription of foreign birth certificates for surrogate children

The European Court of Human Rights (ECtHR) has been asked for an advisory opinion clarifying the obligations of authorities in France, where surrogacy is illegal, to transcribe the foreign birth certificate of a child born through surrogacy.

France’s Court of Cassation, the highest court of appeal for civil and criminal matters, has requested the opinion under Protocol No. 16 to the European Convention on Human Rights, which came into effect in August.

Protocol No. 16 allows the highest courts and tribunals of a state party to request a non-binding advisory opinion on questions of principle relating to the interpretation or application of the rights and freedoms defined in the European Convention.

The request follows two ECtHR rulings in 2014 and 2016 in which France’s refusal to transcribe the birth certificates of children born through surrogacy was found to have breached their article 8 rights.

However, the Court of Cassation said there was still uncertainty about the “margin of appreciation available to state parties” in respect of transcribing birth certificates which “designate the ‘mother of intention’ regardless of any biological reality”.

The request marks the first time that the Court of Cassation has invoked Protocol No. 16.

The court said the request showed it was “fully involved in the process of dialogue of judges institutionalised between the European Court of Human Rights and the national courts - the objective of this Protocol”.