European Court of Human Rights declares inadmissible a case concerning children who were denied Polish citizenship on the grounds they were born via surrogacy and have same-sex parents

The First Section of the European Court of Human Rights has issued its decision in S.-H. v Poland

The case concerns the refusal to grant Polish nationality by descent to two children born through surrogacy in the USA to a same-sex couple residing in Israel, where the legal parent-child link is recognised in another jurisdiction.

The Court unanimously declared the application inadmissible

The applicants and their citizenship status

The applicants, Mr S. S.-H. and Mr M. S.-H., are twin brothers who were born in 2010 in the USA and live in Israel (hereinafter referred to as "the children"). 

The applicants’ parents are Mr S. and Mr H., a same-sex couple, residing in Israel with their children (hereinafter referred to as "the parents"). 

The children have dual Israeli and US nationality. 

The parents both have Israeli citizenship. In addition, one parent, Mr S., has Polish citizenship.

The key issue

The children were born as a result of the parents entering into a gestational surrogacy agreement with K.C. The children were conceived via assisted reproduction technology using Mr S.’s gametes and an egg from a donor.

In September 2010, the Superior Court of California declared Mr S. and Mr H. the natural, joint and equal parents of the twin babies. It also declared Mr S. the biological father of the twins.

Following the birth of the children, Mr S., the biological father (who is a Polish citizen), applied on behalf of the children for confirmation of their Polish citizenship. 

At the material time, Polish law stated, inter alia, that "The child of parents of whom one is a Polish citizen and the other a citizen of another State acquires Polish citizenship by birth..."

In various domestic proceedings in the Polish courts, the children were refused Polish citizenship because:

a) in a first-instance decision it was determined, inter alia, that the Polish legal system did not allow for the concept of surrogacy and, therefore, the children's parents were not, according to Polish law, their parents.

b) in a second-instance decision it was determined, inter alia, that the children's original birth certificates had no evidentiary value, even though they indicated Mr S. and Mr H. as their parents, since these documents contravened the principles of the Polish legal order.

c) the Warsaw Regional Administrative Court held that, inter alia, under the relevant domestic provisions, the children's mother was K.C. and the Polish legal system did not recognise surrogacy.

d) The Supreme Administrative Court held, inter alia, that for the determination of Polish citizenship, a child who had one Polish parent and one foreign parent acquired Polish citizenship at birth. However, for the purposes of Polish law, a child’s mother was the woman who had given birth to that child and, if the child was born during her marriage, there was a legal presumption that the child’s father was the mother’s husband. This court further held that surrogacy agreements were not recognised in the Polish legal system as they "ran counter to the principles of community life" and that the Polish legal system had not attributed parental rights to “so called partner relationships”. For that reason, this court held that accepting the judgment of the Superior Court of California would have been against "public policy principles". As such, the children's birth certificates could not have any legal effect because:

"These certificates indicated Mr S. as the [children's] father and Mr H. as the [children's] mother/parent. Since the certificates indicated the two men as parents, and by that confirmed the surrogacy agreement, they ran counter to the basic principles of the Polish legal system. Mr S. could not therefore be considered to be the [children's] parent." 

Complaints to the European Court of Human Rights

The children complained under Article 8 taken alone and in conjunction with Article 14 of the Convention that the domestic authorities had not recognised their legal parent-child relationship with their biological father and had based the decisions not to confirm their Polish citizenship on considerations relating to their parents’ sexual orientation.

Under Article 8 the children argued, inter alia, that the circumstances of the case fell within the ambit of “private and family life”. In their view, they had been denied Polish citizenship solely on discriminatory grounds, namely the sexual orientation of their parents, one of whom was their biological father. They noted that the domestic authorities had relied on the fact that their birth certificates indicated two men as their parents and that they had been conceived in execution of a surrogacy arrangement.

Under Article 14 taken in conjunction with Article 8 the children complained that they had been discriminated against in the enjoyment of their right to respect for private and family life on account of their status as children of same-sex parents.

Decision of the Court

The Court employed a "consequence-based approach" to determine whether the refusal to recognise the legal parent-child relationship with the children’s biological father, and the ensuing refusal to confirm the acquisition of Polish citizenship by descent, affected the children's private life in a way that made Article 8 applicable.

This "consequence-based approach" has been used by the Court in, for example, the context of professional and business activities to deal with situations when "the reasons for imposing a measure affecting an individual’s professional life are not linked to the individual’s private life" but "an issue under Article 8 may still arise in so far as the impugned measure has or may have serious negative effects on the individual’s private life" (Denisov v Ukraine, 2018, § 107). 

The "consequence-based approach" is in contrast to the "reason-based approach" which is employed "when factors relating to private life were regarded as qualifying criteria for the function in question and when the impugned measure was based on reasons encroaching upon the individual’s freedom of choice in the sphere of private life" (Denisov v Ukraine, 2018, § 103).

In considering it appropriate to employ a "consequence-based approach" the Court set about considering whether the impugned decisions of the Polish courts had "sufficiently serious negative consequences" for the children. In this respect, the Court stated that it was for the children to show convincingly that the threshold was attained in their case and, in this respect, relied on the principle that:

"The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree" (Denisov v Ukraine, 2018, § 116).

On this basis, the Court determined, inter alia, that:

- the Court had not been provided with any specific information or details about the family’s plans to relocate to Poland and it did not appear that such a move was imminent;

- the children had never lived in Poland and, since birth, had been living in Israel as a family unit with their parents;

- the children already had dual US/Israeli citizenship and the Polish domestic decisions did not render them stateless;

- the children had not alerted the Court to any negative consequences or practical difficulties which they might encounter in their chosen country of residence, resulting from the Polish courts’ refusal to confirm the acquisition of Polish citizenship;

- the children can benefit, in the State where they live, from the legal parent‑child relationship with their biological father where the recognition of that relationship is not put into doubt;

- whilst the Polish authorities refused to give effect to the foreign birth certificates establishing the legal parent-child relationship between the children and their biological father, this link is recognised in the country where the family resides.

Although the Court stated it was "mindful that the domestic decisions have clearly had some repercussions on the applicants’ personal identity" it concluded that it "does not appear that the negative effect which the impugned decisions had on the applicants’ private life crossed the threshold of seriousness for an issue to be raised under Article 8 of the Convention". 

In respect of the family life limb of Article 8, the Court stated that the arguments advanced by the children were in principle the same as those submitted in relation to the complaint concerning respect for their private life. The Court stated that it was "unable to find any factual basis for concluding that there has been an interference with the right to respect for family life in the present case".

The Court's ultimate conclusion was:

"[...] it does not appear that so far the family has had to overcome any practical obstacles on account of the Polish authorities’ decisions [...] Most importantly, since the applicants’ family resides in Israel, the inability to obtain confirmation of acquisition of Polish citizenship has not prevented them from enjoying, in the country where they live, their right to respect for their family life. The applicants and their intended parents all have Israeli citizenship, and their legal relationship is recognised in Israel. It does not appear that the fact that the applicants are not recognised as Polish citizens would have any bearing on their family life, for example in the event of their intended parents’ death or separation. Thus, any potential risk to their family life should be regarded in this particular case as purely speculative and hypothetical and could only possibly materialise if they took up residence in Poland".

On this basis, the Court found that Article 8 of the Convention was not applicable. 

In light of this, the Court also rejected the complaint under Article 14 taken in conjunction with Article 8 of the Convention, since Article 14 can only apply if the facts at issue fall within the ambit of one or more of the other provisions of the Convention.

Consequently, the Court declared the application inadmissible.

Short commentary on the Court's decision

The application of a "consequence-based approach" in this case is extremely surprising. Given the facts of the case, which focus on the legal recognition of parent-child relationships, it would have been more obvious for the Court to have declared the measures complained of to fall within the ambit of Article 8 of the Convention and, on this basis, to have proceeded to carry out the standard Article 8 "tests" to determine whether a violation of this Article had occurred (in essence, whether the decisions of the Polish authorities were in accordance with law, pursued a legitimate aim, and were necessary in a democratic society). It is concerning that the Court relied on the "consequence-based approach", which was developed for dealing with situations when a measure imposed is not linked to the individual’s private life but produces an effect on it, when, in this case, the impugned measures are so obviously linked to private (and family) life. 

In adopting the "consequence-based approach" the Court, in essence, started from the position that the complaint would only be deemed to fall within the ambit of Article 8 if the applicants could prove that the decision of the Polish authorities had produced very serious consequences. One could argue that the outcome of the measures complained of - citizenship denied solely on the grounds that the children were born via surrogacy and had same-sex parents - was already a very serious consequence and, as such, brought the complaint within the ambit of Article 8 and placed the emphasis on the Polish government to justify the decisions taken by its authorities. However, under the "consequence-based approach" it was the applicants who were required to convince the Court of the negative consequences of the decisions of the Polish authorities and, moreover, to show that these reached a certain severity. In this sense, the refusal to recognise the children and the parents as a family was not enough, and significant "practical" consequences needed be demonstrated. 

The "consequence-based approach" seems wholly unsuited to dealing with the facts of this case. In my view, the Court should not have adopted this mode of analysis. The Court could just as easily have begun with the presumption that the notion of “private life” within the meaning of Article 8 is a broad concept which encompasses, according to its case law, a person’s physical and social identity which includes the legal parent-child relationship (Labassee v France, 2014, §§ 38 and 75) and, on this basis alone, have determined that the facts of this case fell within its ambit. The Court has previously held that, for the purposes of Article 8, there is a direct link between the establishment of paternity and an applicant's private life (Mikulić v Croatia, 2002, § 55). Moreover, a key issue at stake in this case is the sexual orientation of the children's parents, and sexual orientation is long established to fall within the ambit of Article 8. If the Court had started by accepting that the issue in question fell within the ambit of Article 8, it could have conducted a full review on the merits and employed the standard Article 8 and Article 14+8 tests. This would have involved the Court interrogating the facts of the case in light of its established principle that if the reasons advanced for a difference in treatment are based solely on sexual orientation, this will amount to discrimination under the Convention (Kozak v Poland, 2010, § 92).

Whilst the Court may ultimately have reached the conclusion that the decisions of the Polish authorities did not amount to a violation of Article 8 or Article 14+8 (see, for example, Valdís Fjölnisdóttir and Others v Iceland, 2021) it should, in my view, have reached its conclusion via a full interrogation of the facts based on the presumption that Article 8 did apply. It is wholly unconvincing, in light of the Court's established case law, for the Court to state at the admissibility stage that Article 8 did not apply because, for example, it was "unable to find any factual basis for concluding that there has been an interference with the right to respect for family life". That is an astonishing statement in the context of the Polish authorities saying so clearly and candidly that since the children's birth certificates indicated two men as parents, and by that confirmed the surrogacy agreement, that they ran counter to the basic principles of the Polish legal system. In essence, then, the refusal of the Polish courts to recognise Mr S. as the children's parent should have rendered Article 8 applicable (see applicability of Article 8 in Valdís Fjölnisdóttir and Others v Iceland, 2021), and required the Court to conduct a full review, on the merits, of whether the decisions of the Polish authorities were justified. 

However, having pursued the approach that it did, a further surprising feature of the Court's decision is its conclusion that the children could benefit, in the State where they live, from the legal parent‑child relationship with their biological father, where the recognition of that relationship was not in doubt. Put another way, because the children and parents were deemed not to be suffering from a lack of legal recognition in Israel, the consequences of the decisions by the Polish authorities were deemed to be less negative. This, to my mind, is a problematic approach. Since a key aspect of this case is alleged discrimination on the grounds of sexual orientation, the Court's approach could be interpreted to mean that discrimination in one State is less important if the person or people complaining about it can go and live somewhere else and not suffer from that discrimination (which is an interpretation that can be drawn from earlier decisions of the former European Commission of Human Rights in respect of complaints by same-sex couples). This suggests that the extent of the right of the children to respect for their private and family life is determined by where their biological father has chosen to live with them. Would the Court, therefore, have taken a different view if Mr. S. had, in fact, lived with his children in Poland (see Mennesson v France, 2014 and Labassee v France, 2014)? And, if so, why? Why should the decision of Mr. S. about where he lives with his children determine an assessment of whether the children are being subject to discrimination by the Polish authorities? One could say, either the children are being discriminated against or they are not, and where they live is not relevant. 

Relatedly, it seems problematic for the Court to tell the children that "any potential risk to their family life should be regarded in this particular case as purely speculative and hypothetical and could only possibly materialise if they took up residence in Poland". That seems to send the message that the Court will only deal with the issues raised if the children and their parents move to Poland and, if they encounter similar problems regarding recognition of their family life, make a fresh application to the Court - which, of course, they could do. But what if the children's parents do not feel able to move to Poland without first establishing that they have recognition as a family and, on this basis, their children are regarded as Polish citizens? The Court's message seems to be that the children and their parents must first face the potential "risks" to their family life that may be created by living in a jurisdiction that so obviously does not recognise their family life before those risks can be dealt with. In the context of this case, that seems a problematic approach. 

Ultimately, in this case, the Court was presented with complex facts, involving children born by surrogacy, who have same-sex parents who are legally recognised as their parents in one jurisdiction and who all live together in another jurisdiction. Clearly, Polish law was incapable of dealing with the reality of the children's family life and could not recognise their same-sex parents (legally defined as such in another jurisdiction) as their legal parents. This case clearly, in my view, called for a full examination on the merits, on the basis that Article 8 was applicable, and cried out for an application of the principle that the Convention is a living instrument that must be interpreted in the light of present day conditions. Instead, the Court's approach can be interpreted as a way of avoiding having to deal with the complexities raised by this case. That is a shame because this case, which deals with the complex realities of contemporary family relationships in a legal context that cannot or will not evolve to accommodate such realities, is a case that transcends the person and the interests of the applicants (Deweer v Belgium1980, § 38). As such, it would have been good if the Court had remembered that its mission is to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States (Karner v Austria, 2003, § 26). Instead of doing this, the Court disposed of the application in a manner which is problematic and missed the opportunity to evolve its jurisprudence in important ways.