The French Court of Cassation announced on Friday its decision to request an advisory opinion from the European Court of Human Rights in a case that could have important consequences for couples who are unable to conceive naturally. At issue is a dispute involving a French family whose twin girls were born with the assistance of a gestational surrogate in the United States. Because surrogacy is illegal in France and the woman asserting parental rights over the children is not their biological mother, French authorities have refused to accept the American birth certificates bearing the woman’s name.
In the request for an advisory opinion submitted Friday, the court was asked whether the refusal to accept a birth certificate duly issued in a foreign country for a child born through surrogacy constitutes a violation of the right to respect for privacy and family life under the European Convention on Human Rights. In addition, the court was asked whether a state party may meet its obligations under the convention by allowing the intended mother to adopt the child rather than by accepting a foreign birth certificate identifying her as the mother.
The court’s jurisdiction was expanded in August 2018 to permit states parties to solicit guidance, in the form of an advisory opinion, on the interpretation or application of the convention. Pursuant to Protocol 16 to the convention, requests for advisory opinions are to be reviewed by a panel of judges of the Grand Chamber. Should the court grant a request, it may invite the requesting party and any other party it deems appropriate to make written submissions or to participate in a hearing. Although advisory opinions of the court are non-binding, they form part of the court’s jurisprudence and therefore have the potential to shape the outcome of future cases.
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