European states should allow a woman to recognise her child as a child born of a surrogate mother. This is what the European Court of Human Rights established in an advisory opinion that the newspapers did not hesitate to define as historical.
According to the Strasbourg judges, taking a step in this direction means protecting the child’s right for respect for his private life. Furthermore, it is mandatory by law to identify who is responsible for the child’s legal growth.
Not recognising the so-called intentional parents – that is, the non-biological ones – as the actual mother and father of the child is therefore incompatible with the protection of the child.
The advisory opinion does not indicate how this recognition should take place and leaves each country free to choose whether to transcribe the foreign birth certificate or, for example, to show the intentional mother as an adoptive mother. The important thing, is to recognise a bond of affiliation, provided that the woman has already been recognised as a legal mother at the registry office where conception took place.
The ruling of the European Court of Human Rights is not binding. It can, however, be recalled by all those women who resort to the rented uterus and continue to be told that, by law, the mother of the newborn will remain the surrogate, just as happened to Mrs. Sylve Mennesson.
THE MENNESSON CASE
The court intervened on the subject at the request of the French Cassation, called to establish the statute of Sylve Mennesson. Together with her husband Dominique, the woman had decided to resort to the practice of the rented uterus and in 2000 she had become, thanks to this, mother of twins, born of a surrogate mother in California (in the US the practice is legal, in France no).
However, at the time of the transcription to the registry office in France, only the husband – who had donated the seed – had been registered as a parent. She didn’t, having no biological connection with the child. The French law defends the principle of the reality of childbirth and does not recognize the status of a parent to so-called intentional mothers, even if they are so defined in foreign birth certificates.
REACTIONS TO THE SENTENCE
The associations that oppose the practice of the rented uterus have spoken of a “political sentence” and ambiguous. According to Derville, the recognition of intentional mothers legalises, in a certain sense, the use of surrogate mothers and is therefore contrary to a prohibition established by the legislators of Paris.
Giorgia Meloni of Fratelli d’Italia also spoke on the Court’s ruling. “Abominable is the decision of the European Court of Human Rights that would impose on the States that adhere to the Council of Europe the legalisation of the uterus for rent and gay adoptions”.