D and others v. Belgium
European Court on Human Rights
Application No 29176/13
08 July 2014
European Convention on Human Rights, Article 8
The applicants are two Belgian nationals and their child, who was born under a surrogacy agreement in Ukraine and issued a birth certificate recognising the Belgian couple as legal parents. Their application for a passport or other travel document in relation to the child was initially refused by the Belgian Embassy in Ukraine and the Court of First Instance in Brussels on the ground that they had not presented enough information concerning the surrogate mother and the method of procreation used. Meanwhile, the applicants’ residence permit in Ukraine expired and they had no choice but to return to Belgium, leaving the child with a nanny. It was only four months later, after the applicants presented additional documents, crucially documents establishing a genetic link between the child and father, that the Court of Appeal made an order that travel documents be issued. The applicants complained to the court alleging that the separation between parents and child resulting from the Belgian authorities refusal to issue travel documents in contrary to the right of family life of the applicants, as well as the best interests of the child.
Issue and resolution:
Legal recognition of children born through surrogacy agreement abroad. The Court did not find a violation of the right to family life.
In the Court’s opinion, there had been an interference in the private and family life of the applicants, however, that interference could be justified as pursuing several legitimate aims, namely the prevention of crime, especially trafficking in human beings, and the protection of the rights of others – those of the surrogate mother and of the child. In addition, neither the length of the period of separation, nor the procedure for obtaining travel documents, were unreasonable long. The Court also said that the Convention cannot be interpreted to bind states to accept children born through surrogacy abroad into their territory without conducting appropriate checks. The state had, therefore, acted within its margin of appreciation.
Link to Full Judgment:
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