Analysis: The Strasbourg Court's First Advisory Opinion under Protocol 16

Antoine Buyse

Netherlands Institute of Human Rights (SIM)

Editors’ Note: This blog post is published as a collaboration between the IACL-AICD Blog and the ECHR Blog, which is the leading blog worldwide devoted to the European Court on Human Rights. It will be posted on both blogs simultaneously today, Friday 10 May 2019.

On 10 April, the European Court of Human Rights in Strasbourg handed down its first advisory opinion on a substantive issue under the European Convention on Human Rights (ECHR), a competence given to the Court under Protocol 16 to the Convention. The opinion, delivered upon the request of the French Court of Cassation, related to a very specific family law matter, namely ‘the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother’, as the Court phrased it.

A new judicial tool

The advisory opinion procedure is a new power in the Court’s toolkit. Protocol 16, which entrusts the Court with the power to hand down these opinions was negotiated with the aim of enhancing interaction between the Court and national authorities – specifically domestic Courts. The Protocol entered into force on 1 August 2018 and enables the highest courts of State Parties to the Protocol to request the Court to give an advisory opinion on “on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (Article 1 of the Protocol). Thus, it serves to elucidate the substantive provisions of the ECHR in order to give guidance to domestic courts in their own judicial task. In this sense, it is a relatively unique feature of interaction between national and international courts, comparable to a certain extent to the preliminary ruling procedure of the Court of Justice of the European Union (EU). One of the key differences being that in the EU context lower courts can also ask questions and highest courts in some cases are obliged to ask questions.

The European Court of Human Rights is best known for its work in contentious proceedings, both between alleged victims of human rights violations and states and in inter-state cases. Its rulings in such cases are binding, just like in instances of deciding upon interim measures. Before the entry into force of Protocol 16, the Court did already have the possibility to give advisory opinions, but these could only be delivered upon request of the Council of Europe’s Committee of Ministers and could not relate to the Convention’s substantive rights. They concerned, for example, procedural issues such as the election of judges to the Court. In the case of the new advisory procedure both the audience, scope and aims are thus different.

As the Explanatory Report to Protocol 16 clarifies, the new procedure aims to serve two purposes: fostering the dialogue between courts and strengthening the constitutional role of the European Court. Both in turn are geared towards a more effective protection of the rights laid down in the ECHR. Thus, the procedure should enable domestic courts to directly include ECHR benchmarks into their judicial decision-making – without waiting for an alleged victim to litigate a case all the way to Strasbourg – and it would enable the European Court to focus on issues of interpretation of the Convention, leaving the detailed context-specific decision to the domestic court. The idea was both to help speed up fundamental rights litigation, increasing the cooperation between the two levels of courts, and to prevent large amounts of (often repetitive) cases from piling up in Strasbourg by ‘solving’ them at the national level. This latter goal is closely tied to the increased emphasis on subsidiarity in the past years, trying to resolve issues at the national rather than the European level. It does, of course, lead to a slight reshuffling of roles. And that is exactly the reason why this first Advisory Opinion under Protocol 16 was so highly anticipated.

Background of the case

The case originated in the voyage of Dominique and Sylvie Mennesson, a French married couple, to California. They concluded a gestational surrogacy agreement with a woman there, using the gametes of Mr Mennesson and the egg of a female friend, as Mrs Mennesson was infertile, to create an embryo by way of IVF. The surrogate mother gave birth to twins in 2000. In a ruling, the Supreme Court of California recognised Mr Mennesson as the genetic father and Mrs Mennesson as the legal mother of the two girls. This formal recognition was reflected in the subsequent birth certificates. The legal troubles started when the parents asked the French authorities to transcribe the American birth certificates into the civil status register. The French authorities refused such a transcription, as they deemed it contrary to public policy. Surrogate motherhood was forbidden in France.

Eventually, in 2011, the Mennesson family took their case to the European Court, alleging violations by France of the rights to respect for private life and family life. The judgment in the Mennesson case was delivered in 2014. The Court held that the family life of the four (parents and children) had not been violated, but it did find a violation of the right to respect for private life of the two daughters under Article 8 ECHR. It held that it was not in the best interests of the children, especially of their right to identity, to deprive them of legal recognition due to the restrictions in French law, especially since Mr Mennesson was also the biological father.

Since that judgment, the Court of Cassation in France adjusted its case-law, enabling recognition by birth certificate transcription of at least the biological father in such situations, but not the mother when she was not the biological mother. Moreover, the Mennesson family had to apply for a revision of the earlier refusal to transcribe, so their legal fight was far from over yet. In the proceedings following that revision request, the Court of Cassation decided, and it was the first in Europe to do so, to avail itself of the new Advisory Opinion procedure in Strasbourg. The French court, in its request, clarified that for the mother alternatives to the birth certificate transcription existed: for intended mothers who were married to the recognised father, adoption of the children was possible. The issue was basically whether such an alternative was sufficient under Article 8 ECHR. As one commentator noted, even if the Court of Cassation itself presented the move as an opportunity to enter into institutional dialogue with the European Court, one of the aims of Protocol 16, it could also be seen as a “sign of caution” in a sensitive and complicated issue, in which the French authorities had earlier failed to comply with the ECHR.

The substance of the Opinion

On 12 October 2018, the Court of Cassation sent its request to the European Court, which accepted it early December. It asked two questions. The first was whether the refusal by the French authorities, in the particular circumstances of the case, meant that France was “overstepping its margin of appreciation” under Article 8 ECHR (and whether it mattered legally whether a child was conceived using the eggs of the ‘intended mother’ or not). The second question was, if the first question was answered affirmatively, whether adoption as an alternative would mean Article 8 was complied with.

On the first question, the European Court reiterated that, just like in its original Mennesson judgment, the child’s best interest was a particularly weighty factor in deciding such cases. And, in addition, it would look at the margin of appreciation. On the first factor it noted that the lack of recognition of the legal relationship between mother and child has a negative impact on various aspects of a child’s life. The absolute impossibility for registration, as in the French case, made it impossible for a situation to “be examined in the light of the particular circumstances of the case” (para. 42). On the factor of the margin of appreciation, the Court noted that – based on a comparative-law survey it undertook, there is no consensus in Europe on the issue. This would normally mean, especially in the field of moral and ethical issues, a wide margin of appreciation for states. However, the fact that particularly important aspects of the right to respect for private life were at stake reduced the margin of appreciation. The Court concluded on this point that “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”” and that this would apply “with even greater force” (para. 47) in cases when a child was conceived using the eggs of the “intended mother.”

This conclusion made an answer to the second question necessary. On that point, the Court held that alternatives to transcription into a birth registry, such as adoption, may be used “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the ‘legal mother’.” Here State Parties to the ECHR have a larger margin of appreciation, the second point relates not to the issue of ‘whether’ but rather of ‘how’ to comply with the Convention. Specifically, the European Court held that recognition of the relationship (between children and intended mother), if legally established abroad, should be possible at the latest when the relationship had become a practical reality. This should be possible under a procedure laid down in national law and implementation of such alternatives should be prompt and effective. It is then for domestic courts to decide whether in a particular context these requirements are met.

Judicial signalling

What then to make of this very first Advisory Opinion? It is important to note that the significance of the Opinion certainly stretches far beyond the possible usefulness for the Mennesson family. Substantively, it is of course important that the Grand Chamber of the European Court clearly tried to formulate answers that should be useful to the domestic court at hand. In a step-by-step fashion it went into the two questions posed to it by the French Court of Cassation and attempted to provide clarity. Whether this has been achieved is debatable. Yes, in the sense of indicating that a full refusal would violate the Convention but that the provision of effective alternatives such as adoption would comply with it. No, in the sense that – just like a fractal on which one zooms in – the challenges are just transferred to different, more detailed issues (when does a relationship become a “practical reality”; what is a “prompt and effective” alternative etc.). The Opinion has therefore already met with some criticism. 

In order to assess which view makes more sense, it is important to go back to the goals of the Advisory Opinion procedure: the dialogue between courts and strengthening the constitutional role of the European Court. On these issues the Court itself dedicates some preliminary considerations in the Opinion itself. It states that the very goal of the procedure is not to transfer the dispute to the European level, but rather to provide guidance to national courts, so that the latter can adjudicate on the matter. Entirely in line with the subsidiarity principle, domestic courts can use (or not use) the advice of the European Court as they see fit. In trying to formulate relatively general answers and identify weighing factors, the Court in Strasbourg does really try and put on its constitutional cloak. At the same time, this is done in a very delimited way: opinions under this procedure must be confined to “points directly connected to the proceedings at domestic level” (para. 26). The efficiency gains are then made through European guidance that national courts can subsequently use in similar cases. Those who were hoping for a type of lengthy general comment, in the vein of United Nations human rights treaty bodies, on the issue of gestational surrogacy arrangements will thus be disappointed by this relatively short Opinion of the Court.

Apart from these explicit considerations in the text of the Opinion itself, the Court also undertakes an exercise in judicial signalling to ECHR State Parties in other ways. The first issue of note for a genuine dialogue is of course that the request for an Opinion was accepted by the Court – a rejection of the very first attempt – the Court is not obliged to accept all request – would have been very awkward signposting, especially as many States have not yet ratified Protocol 16.

Secondly, the timing is notable: the Court dealt with the issue in a very swift way (virtually all judgments of the Court take much longer), with less than six month elapsing between request for and delivery of the Opinion. Although one may note that by now the twin girls, born in October 2000, are 18-year-olds – that is how long legal battles may take – and the Court de Cassation has not even decided yet of course. Those six months were used to provide maximum input, as allowed under Protocol 16 (input was received from the Mennesson family, as well as written interventions by three other State Parties and several other institutions and NGOs), but without losing time by way of an oral hearing. The comparative-law research was also done within that relatively short-time span. The signal here to domestic courts seems to be: yes, using this procedure will halt your domestic case, but this pause will be kept as short as possible. The signal to possible interveners seems to be: input welcome, but swiftly please. And the Court also in this first Opinion explicitly states about such written observations that “its task is not to reply to all grounds and arguments submitted to it or to set out in detail the basis for its reply” (para. 34). Again, the self-identified role here seems to be: trying to be useful to domestic courts, swiftly and to the point.

In conclusion, the Advisory Opinion certainly does not solve all issues related to gestational surrogacy.  But what it does represent is an attempt to provide useful and relatively quick decision-making tools, handed down by an international court in its constitutional cloak to the highest domestic courts that find it useful to ask for it.

Antoine Buyse is Director of the Netherlands Institute of Human Rights (SIM), Utrecht University.

Suggested Citation: Antoine Buyse, ‘Analysis: The Strasbourg Court's First Advisory Opinion under Protocol 16’ IACL-AIDC Blog (10 May 2019) https://blog-iacl-aidc.org/2019-posts/2019/5/10/analysis-the-strasbourg-courts-first-advisory-opinion-under-protocol-16