Should both of the names of a couple in a same-sex civil partnership be recorded on a birth certificate?

On 7th May the European Court of Human Rights declared inadmissible the complaint in Boeckel and Gessner-Boeckel v Germany in which the applicants complained about the inability to record both their names on their child's birth certificate. 

The applicants have lived together in a registered civil partnership since 2001 and in 2008 the second applicant gave birth to a son. Following the birth of their son, the Hamburg-Eimsbüttel Civil Registry Office issued a birth certificate naming the second applicant as the boy's mother and a space provided in the form for the father’s name was left blank.

The applicants subsequently requested the Hamburg District Court to rectify the birth certificate by inserting the first applicant as the boy's second parent. This request, and subsequent legal challenges, were rejected. 

Under German law the name of a father can be entered on to a birth certificate of a child when the father is married to the mother but is not the child's biological parent. The same does not hold for same-sex partners in a civil partnership. 

In their complaint to the Court the applicants complained under Article 8 of the European Convention on Human Rights taken on its own and in conjunction with Article 14 of the Convention that they were discriminated against in the enjoyment of their family life on account of their gender. 

The applicants submitted that there was no reasonable justification for allowing a biological mother’s husband to be entered on a birth certificate as the child’s father while refusing to enter the biological mother’s same-sex partner.

In a similar way to other recent decisions, the Court decided that the application was inadmissible because the comparison made by the applicants - between themselves and married opposite-sex couples - was not sufficient for an Article 14 complaint.

Under Article 14, the Court requires that there must be a difference in treatment of persons in relevantly similar situations. It concluded in this case that 'it cannot be said that the applicants found themselves in a relevantly similar situation as a married husband and wife in respect of the entries made into the birth certificate at the time of birth'. A key aspect of the Court's reasoning was that 'it is not confronted with a case concerning transgender or surrogate parenthood'.

In declaring the complaint inadmissible, the Court has legitimated a situation in which a man who marries a woman who subsequently gives birth to a child to which he is not biologically related can have his name automatically recorded on the birth certificate, but a woman who contracted civil partnership to the same woman in the same circumstances can not. 

It is difficult to see how the Court determines that married opposite-sex and same-sex couples in a civil partnership are not in a analogous situation in this respect. 

Boeckel and Gessner-Boeckel v Germany demonstrates, once again, the Court's reluctance to address clear inconsistencies in laws that create discrimination on the grounds of sexual orientation. Furthermore, it shows a continuing use of the question of 'analogous situation' to close down complaints prior to a consideration of the merits.