Factsheet – Reproductive rights

December 2023
This factsheet is not exhaustive and does not bind the Court

Reproductive rights
Abortion
Tysiąc v. Poland
20 March 2007
The applicant was refused a therapeutic abortion, after being warned that her already
severe myopia could worsen if she carried her pregnancy to term. Following the birth of
her child, she had a retinal haemorrhage and was registered severely disabled.
The European Court of Human Rights found that the applicant had been denied access to
an effective mechanism capable of determining whether the conditions for obtaining a
legal abortion had been met, in violation of Article 8 (right to respect for private and
family life) of the European Convention on Human Rights.
A., B. and C. v. Ireland (application no. 25579/05)
16 December 2010 (Grand Chamber)
Three women living in Ireland, who became pregnant unintentionally, complained that,
because of the impossibility of obtaining a legal abortion in Ireland 1, they had to go to
the United Kingdom for an abortion and that the procedure was humiliating, stigmatising
and risked damaging their health. One of the applicants in particular, in remission from a
rare form of cancer and unaware that she was pregnant, underwent checkups
contraindicated in pregnancy. She understood that her pregnancy could provoke a
relapse and believed that it put her life at risk.
The Court found that Ireland had failed to implement the constitutional right to a legal
abortion. There had therefore been a violation of Article 8 (right to respect for private
and family life) of the Convention concerning the applicant in remission from cancer (the
Court held there had been no violation of Article 8 concerning the other two
applicants), because she was unable to establish her right to a legal abortion either
through the courts or the medical services available in Ireland. The Court noted in
particular the uncertainty surrounding the process of establishing whether a woman’s
pregnancy posed a risk to her life and that the threat of criminal prosecution had a
“significant chilling” effect both on doctors and the women concerned.
R.R. v. Poland (no. 27617/04)
26 May 2011
A pregnant mother-of-two – carrying a child thought to be suffering from a severe
genetic abnormality – was deliberately denied timely access to the genetic tests to which
she was entitled by doctors opposed to abortion. Six weeks elapsed between the first
ultrasound scan indicating the possibility that the foetus might be deformed and the
results of the amniocentesis, too late for her to make an informed decision on whether to
continue the pregnancy or to ask for a legal abortion, as the legal time limit had by then
expired. Her daughter was subsequently born with abnormal chromosomes (Turner
syndrome 2). She submitted that bringing up and educating a severely-ill child had been

1
. Having or helping anyone to have an abortion was a criminal offence in Ireland. However there was a
constitutional right to an abortion where there was a real and substantial risk to the life of the mother.
2
. A genetic condition, affecting around one in every 2,500 girls, in which the sufferer does not have the usual
pair of two X chromosomes. They are also usually shorter than average and infertile. Other health problems
Factsheet – Reproductive rights

damaging to herself and her other two children. Her husband also left her following the
birth of their third child.
The Court found a violation of Article 3 (prohibition of inhuman and degrading
treatment) of the Convention as the applicant, who was in a very vulnerable position,
had been humiliated and “shabbily” treated, the determination of whether she should
have had access to genetic tests, as recommended by doctors, being marred by
procrastination, confusion and lack of proper counselling and information. The Court also
found a violation of Article 8 (right to respect for private and family life) of the
Convention because Polish law did not include any effective mechanisms which would
have enabled the applicant to have access to the available diagnostic services and to
take, in the light of their results, an informed decision as to whether or not to seek an
abortion. Given that Polish domestic law allowed for abortion in cases of foetal
malformation, there had to be an adequate legal and procedural framework to guarantee
that relevant, full and reliable information on the foetus’ health be made available to
pregnant women. The Court did not agree with the Polish Government that providing
access to prenatal genetic tests was in effect providing access to abortion. Women
sought access to such tests for many reasons. In addition, States were obliged to
organise their health services to ensure that the effective exercise of the freedom of
conscience of health professionals in a professional context did not prevent patients from
obtaining access to services to which they were legally entitled.
P. and S. v. Poland (no. 57375/08)
30 October 2012
This case concerned the difficulties encountered by a teenage girl, who had become
pregnant as a result of rape, in obtaining access to an abortion, in particular due to
the lack of a clear legal framework, procrastination of medical staff and also as a result
of harassment.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention. It found in particular that the applicants had been
given misleading and contradictory information and had not received objective medical
counselling; and, the fact that access to abortion was a subject of heated debate
in Poland did not absolve the medical staff from their professional obligations regarding
medical secrecy.
S.F.K. v. Russia (no. 5578/12) 3
11 October 2022
This case concerned the applicant’s complaint that in 2010 she was forced to have
an abortion by her parents, even though she had made it clear to them and at the public
hospital where the intervention took place that she wanted to continue with the five-
week pregnancy. The parents were opposed to her relationship with the would-be father,
who was the suspect in a violent crime and had been arrested. The applicant lodged a
number of complaints against her parents and the medical personnel, but no criminal
proceedings were ever instituted as the relevant authorities found that no elements of a
crime could be established and that her parents had acted in the best interests of their
child. She had since had two miscarriages and was declared infertile in 2017. Before the
Court, she submitted in particular that the forced abortion, and inadequate medical care
before and afterwards, had amounted to inhuman and degrading treatment.
The Court held that there had been a violation of Article 3 (prohibition of inhuman and
degrading treatment) of the Convention, under its substantive aspect, noting in
particular that the applicant’s abortion had been carried out against her will and in
breach of all the applicable medical rules, and that such a forced abortion undergone in
those circumstances had been contrary to her human dignity. The Court found that it

can include kidney and heart abnormalities, high blood pressure, obesity, diabetes mellitus, cataract, thyroid
problems, and arthritis. Some sufferers may also have learning difficulties.
3
. On 16 September 2022 the Russian Federation ceased to be a Party to the European Convention on Human
Rights (“the Convention”).

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Factsheet – Reproductive rights

had been an egregious form of inhuman and degrading treatment which had not only
resulted in a serious immediate damage to her health – that is the loss of her unborn
child – but had also entailed long-lasting negative physical and psychological effects.
The Court also held that there had been a violation of the procedural aspect of
Article 3, finding that, in view of the manner in which the authorities had handled the
case – notably their reluctance to open a criminal investigation into the applicant’s
credible claims of forced abortion and their failure to take effective measures against the
applicant’s parents and the relevant health professionals, ensuring their punishment
under the applicable legal provisions – the State had failed to discharge its duty to
investigate the ill-treatment that the applicant had endured.
G.M. and Others v. the Republic of Moldova (no. 44394/15)
22 November 2022
This case concerned the imposition of abortions and birth-control measures on three
intellectually disabled women, residents in a neuropsychiatric asylum, after they
had been repeatedly raped by one of the head doctors there, and the investigation
into their complaints.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or
degrading treatment) of the Convention in both its substantive and its procedural
aspects. It noted in particular that the domestic authorities had failed to carry out an
effective investigation into the applicants’ allegations of ill-treatment despite it having
been reopened on four occasions following their appeals. Moreover, the inquiry had not
factored in their vulnerability as intellectually disabled women exposed to sexual abuse
in an institutional context. The Court also found that the domestic criminal law had not
provided effective protection against such invasive medical interventions carried out
without the patient’s valid consent.
A.M. and Others v. Poland (nos. 4188/21, 4957/21, 5014/21, 5523/21,
5876/21, 6114/21, 6217/21 and 8857/21)
16 May 2023 (decision on the admissibility)
These applications concerned restrictions on abortion rights in Poland. The applicants
alleged in particular that, following amendments to the legislative framework in 2020,
they had effectively been banned from having access to legal abortion in the case of
foetal abnormalities.
The Court declared the applications inadmissible, finding that the consequences for the
applicants of the legislative amendments had been too remote and abstract for them to
arguably claim to be “victims” within the meaning of the Convention. The Court noted,
in particular, that the applicants had failed to provide any convincing medical evidence
proving that they had been at real risk of being directly affected by the 2020 legislative
amendments. Nor had they produced any documents relating to their personal
circumstances, making it impossible to assess their individual situations
See also: M.B. v. Poland (no. 3030/21) and 926 other applications, decision
(Committee) of 5 December 2023.
M.L. c. Pologne (n° 40119/21)
14 December 2023 4
The applicant alleged in particular that she had been banned from having access to a
legal abortion in the case of foetal abnormalities, following a 2020 Polish Constitutional
Court judgment. She had become pregnant and the foetus was diagnosed with
trisomy 21. A scheduled hospital abortion had been cancelled when the legislative
amendments resulting from the Constitutional Court ruling had come into force.
Unable to have an abortion in Poland, she had ultimately had to travel to a private clinic
abroad for the procedure.

4
. This judgment will become final in the circumstances set out in Article 44 § 2 (final judgments) of the
European Convention on Human Rights.

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Factsheet – Reproductive rights

In the present case the Court held that there had been a violation of Article 8 (right to
respect for private and family life) of the Convention in respect of the applicant. It found,
in particular, that the legislative amendments in question, which had forced the applicant
to travel abroad for an abortion at considerable expense and away from her family
support network, had to have had a significant psychological impact on her.
Such interference with her rights, and in particular with a medical procedure for which
she had qualified and which had already been put in motion, had created a situation
which had deprived her of proper safeguards against arbitrariness. Moreover,
the composition of the Constitutional Court that had issued the ruling impacting the
applicant’s rights had included judges who had been appointed in a procedure tainted by
serious irregularities (see the Xero Flor v. Poland judgment of 7 May 2021).

Embryo donation and scientific research

Parrillo v. Italy
27 August 2015 (Grand Chamber)
This case concerned a ban under Italian Law no. 40/2004, preventing the applicant from
donating to scientific research embryos obtained from an in vitro fertilisation which were
not destined for a pregnancy. Under Article 1 (protection of property) of Protocol No. 1
to the Convention, the applicant complained that she was unable to donate her embryos,
conceived through medically assisted reproduction, to scientific research and was obliged
to keep them in a state of cryopreservation until their death. The applicant also
considered that the prohibition in question amounted to a violation of her right to respect
for her private life, protected by Article 8 of the Convention.
The Court, which was called upon for the first time to rule on this issue, held that
Article 8 (right to respect for private and family life) of the Convention was applicable in
this case under its “private life” aspect, as the embryos in question contained the
applicant’s genetic material and accordingly represented a constituent part of her
identity. The Court considered at the outset that Italy was to be given considerable room
for manoeuvre (“wide margin of appreciation”) on this sensitive question, as confirmed
by the lack of a European consensus and the international texts on this subject. It then
noted that the drafting process for Law no. 40/2004 had given rise to considerable
discussions and that the Italian legislature had taken account of the State’s interest in
protecting the embryo and the interest of the individuals concerned in exercising their
right to self-determination. The Court further stated that it was not necessary in this
case to examine the sensitive and controversial question of when human life begins, as
Article 2 (right to life) of the Convention was not in issue. Noting, lastly that there was
no evidence that the applicant’s deceased partner would have wished to donate the
embryos to medical research, the Court concluded that the ban in question had been
necessary in a democratic society. In consequence, the Court held that there had been
no violation of Article 8 of the Convention. Lastly, with regard to Article 1 (protection
of property) of Protocol No. 1 to the Convention, the Court considered that it did not
apply to the present case, since human embryos could not be reduced to “possessions”
within the meaning of that provision. This complaint was accordingly dismissed.

Home birth
Ternovsky v. Hungary
14 December 2010
The applicant complained about being denied the opportunity to give birth at home,
arguing that midwives or other health professionals were effectively dissuaded by law
from assisting her, because they risked being prosecuted. (There had recently been at
least one such prosecution.)
The Court found that the applicant was in effect not free to choose to give birth at home
because of the permanent threat of prosecution faced by health professionals and the

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absence of specific and comprehensive legislation on the subject, in violation of

Article 8 right to respect for private and family life) of the Convention.
Dubská and Krejzová v. the Czech Republic
15 November 2016 (Grand Chamber)
This case concerned a law in the Czech Republic which made it impossible in practice for
mothers to be assisted by a midwife during home births. The applicants, two women who
wished to avoid unnecessary medical intervention in delivering their babies, complained
that because of this law they had had no choice but to give birth in a hospital if they
wished to be assisted by a midwife.
The Grand Chamber held that there had been no violation of Article 8 (right to respect
for private and family life) of the Convention. It found in particular that the national
authorities had considerable room for manoeuvre when regulating the question of home
births, a matter for which there is no European consensus and which involves complex
issues of health-care policy as well as allocation of State resources. In the applicants’
case, the Grand Chamber considered that the Czech Republic’s current policy struck a
fair balance between, on the one hand, mothers’ right to respect for their private life
and, on the other, the State’s interest in protecting the health and safety of the child and
mother during and after delivery. Moreover, since 2014 the Czech Government had
taken some initiatives with a view to improving the situation in local maternity hospitals,
notably by setting up a new governmental expert committee on obstetrics, midwifery
and related women’s rights. Lastly, the Grand Chamber invited the Czech authorities to
make further progress by continuing their constant review of the relevant legal
provisions on home births, making sure that they reflect medical and scientific
developments whilst fully respecting women’s rights in the field of reproductive rights.
Pojatina v. Croatia
4 October 2018
This case concerned Croatian legislation on home births. The applicant in the case was a
mother who had given birth to her fourth child at home with the help of a midwife from
abroad. She alleged in particular that, although Croatian law allowed home births,
women such as her could not make this choice in practice because they were not able to
get professional help.
The Court held that there had been no violation of Article 8 (right to respect for
private and family life) of the Convention. It accepted that at first there might have been
some doubt as to whether a system for assisted home births had been set up in Croatia.
It therefore called on the authorities to consolidate the relevant legislation so that the
matter is expressly and clearly regulated. However, it found that the applicant had
clearly been made aware, through the letters from the Croatian Chamber of Midwives
and the Ministry of Health which she had received while she had still been pregnant with
her fourth child, that the domestic law did not allow assisted home births. It further
found that the authorities had struck the right balance between the applicant’s right to
respect for her private life and the State’s interest in protecting the health and safety of
mothers and children. It pointed out in particular that Croatia was not currently required
under the Convention to allow planned home births. There was still a great disparity
between the legal systems of the Contracting States on home births and the Court was
sensitive to the fact that the law developed gradually in this area.
Kosaitė-Čypienė and Others v. Lithuania
4 June 2019
This case concerned Lithuania’s law on medical assistance for home births.
The applicants, four women, had unsuccessfully requested that the Ministry of Health
amend the legislation that prohibited medical professionals from assisting in home
births. They complained in particular that the law had dissuaded healthcare professionals
from assisting in home births.
The Court held that there had been no violation of Article 8 (right to respect for
private life) of the Convention. It found that Lithuania had struck a fair balance between

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Factsheet – Reproductive rights

the interests involved: namely, the mothers’ right to respect for their private life
against the State’s interest in health and safety. In particular, the four women could
have opted for any one of the maternity wards created in Lithuania since the 1990s
to ensure home-like conditions for women giving birth, in particular in Vilnius where they
lived. Additionally, postnatal care was available if an emergency had arisen during or
after a delivery at home. Moreover, although Lithuania had recently changed the law on
home births, it had not actually been required to do so under the European Convention
given the great disparity between the legal systems of the Contracting States on
the matter.

Medically-assisted procreation
Evans v. United Kingdom
10 April 2007 (Grand Chamber)
The applicant, who was suffering from ovarian cancer, underwent in-vitro
fertilisation (IVF) with her then partner before having her ovaries removed. Six
embryos were created and placed in storage. When the couple’s relationship ended, her
ex-partner withdrew his consent for the embryos to be used, not wanting to be the
genetic parent of the applicant’s child. National law consequently required that the eggs
be destroyed. The applicant complained that domestic law permitted her former partner
effectively to withdraw his consent to the storage and use by her of embryos created
jointly by them, preventing her from ever having a child to whom she would be
genetically related.
For the reasons given by the Chamber in its judgment of 7 March 2006, namely that the
issue of when the right to life began came within the State’s margin of appreciation,
the Grand Chamber found that the embryos created by the applicant and her former
partner did not have a right to life. It therefore held that there had been no violation of
Article 2 (right to life) of the Convention. The Grand Chamber further considered that,
given the lack of European consensus, the fact that the domestic rules had been clear
and brought to the attention of the applicant and that they had struck a fair balance
between the competing interests, there had been no violation of Article 8 (right to
respect for private and family life) of the Convention. Lastly, the Grand Chamber held
that there had been no violation of Article 14 (prohibition of discrimination) taken in
conjunction with Article 8 of the Convention.
Dickson v. United Kingdom
4 December 2007 (Grand Chamber)
The applicant, a prisoner with a minimum 15-year sentence to serve for murder, was
refused access to artificial insemination facilities to enable him to have a child with his
wife, who, born in 1958, had little chance of conceiving after his release.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention as a fair balance had not been struck between the
competing public and private interests.
S.H. and Others v. Austria (no. 57813/00)
3 November 2011 (Grand Chamber)
This case concerned two Austrian couples wishing to conceive a child through IVF. One
couple needed the use of sperm from a donor and the other, donated ova. Austrian law
prohibits the use of sperm for IVF and ova donation in general.
The Court noted that, although there was a clear trend across Europe in favour of
allowing gamete donation for in-vitro fertilisation, the emerging consensus was still
under development and was not based on settled legal principles. Austrian legislators
had tried, among other things, to avoid the possibility that two women could claim to be
the biological mother of the same child. They had approached carefully a controversial
issue raising complex ethical questions and had not banned individuals from going
overseas for infertility treatment unavailable in Austria. The Court concluded that there

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Factsheet – Reproductive rights

had been no violation of Article 8 (right to respect for private and family life) of the
Convention in the present case. However, it underlined the importance of keeping legal
and fast-moving scientific developments in the field of artificial procreation under review.
Costa and Pavan v. Italy
28 August 2012
This case concerned an Italian couple who are healthy carriers of cystic fibrosis and
wanted, with the help of medically-assisted procreation and genetic screening, to avoid
transmitting the disease to their offspring.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention, finding that the interference with the applicants’ right
to respect for their private and family life had been disproportionate. It noted in
particular the inconsistency in Italian law that denied the couple access to embryo
screening but authorised medically-assisted termination of pregnancy if the foetus
showed symptoms of the same disease. The Court also stressed the difference between
this case, which concerned preimplantation diagnosis (PID) and homologous
insemination 5, and that of S.H. and Others v. Austria (see above), which concerned
access to donor insemination. Although the question of access to PID raised delicate
issues of a moral and ethical nature, the legislative choices made by Parliament in the
matter did not elude the Court’s supervision.
Knecht v. Romania
2 October 2012
In July 2009 frozen embryos that the applicant had deposited with a private clinic were
seized by the authorities due to concerns about the clinic’s credentials. The applicant
subsequently experienced considerable difficulties in securing a transfer by the State of
the embryos to a specialised clinic so that she might use them to become a parent by
means of an IVF procedure. Before the Court, the applicant complained that this resulted
in a breach of her right to a private and family life.
The Court held that there had been no violation of Article 8 (right to respect for
private and family life) of the Convention. The domestic courts had expressly
acknowledged that the applicant had suffered a breach of her rights under Article 8 on
account of the refusal by the authorities to allow the embryo transfer, and had offered
her the required redress for the breach, which led to the transfer of the embryos in a
relatively short time. Therefore the requisite steps had been taken to secure respect for
the applicant’s right to respect for her private life.
Nedescu v. Romania
16 January 2018
The applicants, a married couple, alleged that they had not been able to recover
embryos that had been seized by the prosecuting authorities in 2009 and that they had
been prevented from having another child. The couple had won court orders in their
favour to retrieve the embryos, but they had not been able to fulfil them.
In this case the Court held that there had been a violation of Article 8 (right to respect
for private and family life) of the Convention, finding in particular that preventing the
applicants from retrieving their embryos as ordered by the High Court of Cassation had
constituted an interference with their right to respect for their private life which was not
provided for by law.
See also: Lia v. Malta, judgment of 5 May 2022.
Charron and Merle-Montet v. France
16 January 2018 (decision on the admissibility)
The applicants, a female married couple, complained that their request for medically
assisted reproduction had been rejected on the grounds that French law did not
authorise such medical provision for same-sex couples.

5
. Using gametes from the couple (cf. donor insemination, using donated gametes).

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The Court declared the application inadmissible. It noted in particular that the
Hospital’s decision rejecting the applicants’ request for access to medically assisted
reproduction had been an individual administrative decision that could have been set
aside on appeal for abuse of authority before the administrative courts. However,
the applicants had not used that remedy. In the present case, noting the importance of
the subsidiarity principle, the Court found that the applicants had failed to exhaust
domestic remedies.
Petithory Lanzmann v. France
12 November 2019 (Committee decision on the admissibility)
This case concerned the applicant’s request to have her deceased son’s sperm
transferred to an establishment capable of arranging medically assisted reproduction
or gestational surrogacy. The applicant complained in particular that it was impossible
to have access to her deceased son’s sperm with a view to arranging, in accordance
with his last wishes, medically assisted reproduction via a donation to an infertile couple
or gestational surrogacy, procedures which would be authorised in Israel or the
United States.
The Court observed that the applicant’s complaint actually comprised two distinct parts.
In the first part she claimed to be an indirect victim, on behalf of her late son, while in
the second she claimed to be a direct victim since she had been deprived of the
possibility of becoming a grandparent. The Court declared both parts of the application
inadmissible, noting in particular that the right for an individual to decide how and
when to become a parent was a non-transferable right and that Article 8 (right to
respect for private and family life) of the Convention did not guarantee a right to become
a grandparent.
Gauvin-Fournis v. France and Silliau v. France
7 septembre 2023 6
This case concerned the inability, alleged by the applicants, who were born in the 1980s
by means of medically assisted procreation using third-party donors, to access
information concerning the respective donors 7. The applicants submitted that their
inability to obtain information concerning their respective biological fathers constituted
an infringement of their right to respect for their private and family life. They added that,
owing to the method through which they had been conceived, they faced discrimination
in the exercise of their right to respect for their private life, by contrast with other
children, since it was impossible for them to obtain non-identifying information
concerning the third-party donor, including medical information.
The Court held that there had been no violation of Article 8 (right to respect for
private life) of the Convention in the present case, finding that the respondent State had
not breached its positive obligation to ensure effective respect for the first and second
applicants’ private life. The Court noted in particular that the situation complained of by
the applicants resulted from decisions taken by the legislature. Each bioethics law had
been preceded by a public debate in the form of consultations, in order to take into
consideration all points of view. In the Court’s opinion, the legislature had duly weighed
up the interests and rights at stake after an informed and gradual process of reflection
on the need to lift donor anonymity. Reiterating that there was no clear consensus on
the issue of access to origins, merely a recent trend in favour of lifting donor anonymity,
it considered that the legislature had acted within its discretion (“margin of
appreciation”). The respondent State could not therefore be criticised for the pace at
which the reform had been enacted or for having been slow to agree to such reform.
In the present case, the Court considered that the respondent State had not overstepped
its margin of appreciation in this area, including in its decision when enacting the

6
. This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention.
7
. This situation had lasted until 1 September 2022, when a new legal system for obtaining access to one’s
origins entered into force. It introduced a system of access to information about one’s origins for individuals
who had been born prior to its entry into force; however, this was subject to the donors giving their consent.

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Bioethics Act of 2 August 2021 to make access to information about one’s origins for
persons in the applicants’ situation subject to the condition that the third-party donor
gave his or her consent. Lastly, the Court noted that when the applications were lodged
with the Court, the principle of anonymity in gamete donations had not prevented
doctors from obtaining access to medical information and disclosing it to individuals born
through the relevant gamete donation, where required by therapeutic necessity,
including with a view to preventing the risk of consanguinity, considered by the
applicants to be an infringement of their right to health. With regard to non-identifying
medical information, the Court noted that the State had struck a faire balance between
the competing interests at stake.
Baret et Caballero c. France
14 September 2023 8
The two cases concerned the prohibition on exporting the sperm of the first applicant’s
deceased husband and the embryos created by the second applicant with her deceased
husband to Spain, a country where posthumous conception was permitted.
The applicants submitted that the refusals complained of, which had been based on the
prohibition of posthumous conception laid down by Article L. 2141-2 of the Public Health
Code and the prohibition on exporting gametes or embryos for purposes prohibited by
French law under Article L. 2141-11-1 of that Code, entailed a violation of their rights.
The Court held that there had been no violation of Article 8 (right to respect for
private and family life) of the Convention, finding that the French authorities had struck
a fair balance between the competing interests at stake and that the respondent State
had acted within its discretion. The Court found in particular that the contested
prohibition had affected the applicants’ private life, in that the possibility for people to
exercise their choice as to what happened to their embryos or gametes came within the
ambit of their right to self-determination, and that it constituted an interference with
their right to attempt to have children by having recourse to medically assisted
reproduction techniques. It considered that the impugned interference, which derived
from the notion of family as it prevailed at the time and which aimed to guarantee
respect for human dignity and self-determination and to ensure a fair balance between
the interests of the different parties involved in medically assisted reproduction, pursued
the legitimate aims of “the protection of the rights and freedoms of others” and the
“protection of morals”. As to the necessity of the impugned interference, the Court
considered that the absolute nature of the prohibition on posthumous insemination in
France was a political choice and that, when it came to a social issue relating to moral or
ethical considerations, the role of the domestic policy-maker had to be given special
weight. It noted that the prohibition on exporting gametes or embryos, which equated to
“exporting” the prohibition on posthumous conception within the national territory, had
as its aim to avert the risk that the provisions of the Public Health Code prohibiting this
practice would be circumvented. It also noted that, up until the enactment of the
Bioethics Act of 2 August 2021, the legislature had attempted to reconcile the desire to
extend access to medically assisted reproduction with the need to respect society’s
concerns as to the sensitive ethical considerations raised by the possibility of
posthumous conception. The Court found that the above considerations were also
relevant as concerned the prohibition on posthumous embryo transfer, reiterating that
an embryo did not have independent rights or interests. It pointed out that the Conseil
d’État had carried out its review of the contested refusals in accordance with the
methodology laid down by it in its decision in Gonzalez Gomez of May 2016 and that,
in the circumstances of the present cases, there was no reason to depart from the
findings of the domestic court. Nevertheless, the Court acknowledged that the
legislature’s decision to extend the right to medically assisted reproduction to female
couples and single women since 2021 reopened the debate as to the relevance of the
justification for maintaining the prohibition complained of by the applicants.

8
. This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention.

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Precautionary measures to protect a new-born baby’s health

Hanzelkovi v. the Czech Republic
11 December 2014
This case concerned a court-ordered interim measure requiring the return to hospital of
a new-born baby and its mother, who had just given birth and had immediately gone
home, and the lack of any remedy by which to complain about that measure. The
applicants – the mother and the child – complained of a violation of their right to respect
for their private and family life, alleging that the measure whereby the child’s return to
the hospital had been ordered a few hours after his birth was neither lawful nor
necessary. They also complained about the lack of an effective remedy, as they had
been unable to challenge the interim measure, and, not being able to obtain its
annulment, they were not entitled to any redress or damages.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life), and a violation of Article 13 (right to an effective remedy) of the
Convention. It reiterated in particular that the taking into care of a new-born baby at
birth was an extremely harsh measure and that there had to be unusually compelling
reasons for a baby to be removed from the care of its mother against her will
immediately after the birth and following a procedure which involved neither the mother
nor her partner. In the present case, the Court found in particular that when the
domestic court was considering the interim measure it should have ascertained whether
it was possible to have recourse to a less extreme form of interference with the
applicants’ family life at such a decisive moment in their lives. It took the view that this
serious interference with the applicants’ family life and the conditions of its
implementation had had disproportionate effects on their prospects of enjoying a family
life immediately after the child’s birth. While there may have been a need to take
precautionary measures to protect the baby’s health, the interference with the
applicants’ family life caused by the interim measure could not be regarded as necessary
in a democratic society.

Prenatal medical tests

Draon v. France (no. 1513/03) and Maurice v. France (no. 11810/03)
6 October 2005 (Grand Chamber)
The applicants are parents of children with severe congenital disabilities which, due to
medical errors, were not discovered during prenatal medical examinations. They brought
proceedings against the hospitals concerned. A new law of 4 March 2002, introduced
while their proceedings were pending, meant that it was no longer possible to claim
compensation from the hospital/doctor responsible for life-long “special burdens”
resulting from the child’s disability. The compensation they were awarded did not
therefore cover those “special burdens”.
The Court found that the law in question was in violation of Article 1 (protection of
property) of Protocol No. 1 to the Convention concerning proceedings which were
pending when the law came into force.
A.K. v. Latvia (no. 33011/08)
24 June 2014
The applicant alleged that she had been denied adequate and timely medical care in the
form of an antenatal screening test which would have indicated the risk of her foetus
having a genetic disorder and would have allowed her to choose whether to continue the
pregnancy. She also complained that the national courts, by wrongly interpreting the
Medical Treatment Law, had failed to establish an infringement of her right to respect for
her private life.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention in its procedural aspect, finding that the domestic

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court had conducted the proceedings in an arbitrary manner and had failed to examine
the applicant’s claim properly.
See also, more recently:
Eryiğit v. Turkey, judgment of 10 April 2018, concerning an erroneous prenatal
diagnosis, where the Court held that there had been a violation of Article 8 of the
Convention in its procedural aspect.

Presence of medical students during child birth and privacy

rights
Konovalova v. Russia 9
9 October 2014
The applicant complained about the unauthorised presence of medical students during
the birth of her child, alleging that she had not given written consent to being observed
and had been barely conscious when told of such arrangements.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention. It found in particular that the relevant national
legislation at the time of the birth of the applicant’s baby – 1999 – did not contain any
safeguards to protect patients’ privacy rights. This serious shortcoming had been
exacerbated by the hospital’s procedure for obtaining consent from patients to take part
in the clinical teaching programme during their treatment. In particular, the hospital’s
booklet notifying the applicant of her possible involvement in the teaching programme
had been vague and the matter had in general been presented to her in such a way as to
suggest that she had no other choice.

Sterilisation operations
Gauer and Others v. France
23 October 2012 (decision on the admissibility)
This case concerned the sterilisation for the purposes of contraception of five young
women with mental disabilities who were employed at a local work-based support centre
(Centre d’aide pour le travail – CAT). They submitted in particular that there had been
an interference with their physical integrity as a result of the sterilisation which had been
carried out without their consent having been sought, and alleged a violation of their
right to respect for their private life and their right to found a family. They further
submitted that they had been subjected to discrimination as a result of their disability.
The Court found that the application had been lodged out of time and therefore declared
it inadmissible pursuant to Article 35 (admissibility criteria) of the Convention.
G.B. and R.B. v. the Republic of Moldova (no. 16761/09)
18 December 2012
Giving birth to a child in May 2000, the first applicant, aged 32 at the time, had a
Caesarean section, during which the obstetrician removed her ovaries and Fallopian
tubes without obtaining her permission. She has been in treatment to counteract the
effects of early menopause since 2001 and has had health problems ever since, including
depression and osteoporosis. The courts found the obstetrician guilty of medical
negligence, but eventually absolved him of criminal responsibility in 2005. The first
applicant and her husband (the second applicant) brought civil proceedings against the
hospital and the obstetrician, and were awarded damages in the amount of 607 euros.
Before the Court, they complained of the first applicant’s sterilisation and of the low
amount of compensation they had been awarded.

9
. On 16 September 2022 the Russian Federation ceased to be a Party to the Convention.

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Factsheet – Reproductive rights

The Court considered that the first applicant had not lost her victim status and held that
there had been a violation of Article 8 (right to respect for private and family life) of
the Convention. It found in particular that the amount of compensation awarded by the
domestic courts was considerably below the minimum level of compensation generally
awarded by the Court in cases in which it has found a violation of Article 8 and required
sufficient just satisfaction, as the devastating effects on the first applicant had made this
a particularly serious interference with her Convention rights.
Csoma v. Romania
15 January 2013
The applicant complained that as a result of serious medical errors she was no longer
able to bear children. While she was in her sixteenth week of pregnancy, the foetus was
diagnosed with hydrocephalus and it was decided that the pregnancy should be
interrupted. After complications following treatments the applicant received to induce
abortion, her doctor had to remove her uterus and excise her ovaries in order to save
her life. She alleged that failures in her treatment had endangered her life and had left
her permanently unable to bear children. She further complained that, because of the
deficiencies of the investigation, doctors’ liability had not been established.
The Court held that there had been a violation of Article 8 (right to respect for private
life) of the Convention. It found in particular that by not involving the applicant in
the choice of medical treatment and by not informing her properly of the risks involved
in the medical procedure, the applicant had suffered an infringement of her right
to private life.
Y.P. v. Russia (no. 43300/13) 10
20 September 2022
This case concerned the applicant’s sterilisation in a public hospital without her consent.
She found out, when consulting a gynaecologist because she could not get pregnant,
that she had been sterilised two years before during a Caesarean section. Her civil claim
against the maternity hospital was later dismissed by the courts.
The Court held that there had been a violation of Article 8 (right to respect for private
life) of the Convention in respect of the applicant. It noted, in particular, that it was clear
that she had suffered an infringement of her right to respect for her private life as a
result of the doctors’ failure to seek and obtain her express, free and informed consent
as regards her sterilisation, in line with domestic law. Moreover, the national courts had
refused to establish the doctors’ responsibility for the sterilisation, thereby endorsing the
approach which had stood in conflict with the principle of the patient’s autonomy,
established both in domestic law and at the international level. The Court also observed
that the medical intervention with such serious consequences had been performed
without respecting the rules and safeguards created by the domestic system itself, which
was difficult to reconcile with the procedural safeguards enshrined in Article 8 of
the Convention. Lastly, the applicant had not been afforded any redress for the
infringement of her right to respect for private life.
G.M. and Others v. the Republic of Moldova (no. 44394/15)
22 November 2022
See above, under “Abortion”.
Forced sterilisation of Roma women
K.H. and Others v. Slovakia (no. 32881/04)
28 April 2009
Eight Slovak women of Roma ethnic origin found they were unable to conceive after
having caesareans. Suspecting that they were sterilised without their knowledge during
the operations, they sued the two Slovak hospitals concerned.

10
. On 16 September 2022 the Russian Federation ceased to be a Party to the Convention.

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Factsheet – Reproductive rights

The Court found that the impossibility for the applicants to obtain photocopies of their
medical records was in violation of Articles 8 (right to respect for private and family
life) and 6 § 1 (access to court) of the Convention.
V.C. v. Slovakia (no. 18968/07)
8 November 2011
The applicant, of Roma ethnic origin, was sterilised in a public hospital without her
full and informed consent, following the birth of her second child. She signed the
consent form while still in labour, without understanding what was meant or that
the process was irreversible, and after having been told that, if she had a third child,
either she or the baby would die. She has since been ostracised by the Roma community
and, now divorced, cites her infertility as one of the reasons for her separation from her
ex-husband.
The Court found that the applicant must have experienced fear, anguish and feelings of
inferiority as a result of her sterilisation, as well as the way in which she had been
requested to agree to it. She had suffered physically and psychologically over a long
period and also in terms of her relationship with her then husband and the Roma
community. Although there was no proof that the medical staff concerned had intended
to ill-treat her, they had acted with gross disregard to her right to autonomy and choice
as a patient. Her sterilisation had therefore been in violation of Article 3 (prohibition of
inhuman or degrading treatment) of the Convention. The Court further held that there
had been no violation of Article 3 as concerned the applicant’s allegation that the
investigation into her sterilisation had been inadequate. Lastly, the Court found a
violation of Article 8 (right to respect for private and family life) of the Convention
concerning the lack of legal safeguards giving special consideration to her reproductive
health as a Roma at that time.
N.B. v. Slovakia (no. 29518/10)
12 June 2012
In this case the applicant alleged that she had been sterilised without her full and
informed consent in a public hospital in Slovakia.
The Court concluded that the sterilisation of the applicant had been in violation of
Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It further
held that there had been no violation of Article 3 as concerned the applicant’s
allegation that the investigation into her sterilisation had been inadequate. It lastly found
a violation of Article 8 (right to respect for private and family life) of the Convention.
I.G., M.K. and R.H. v. Slovakia (no. 15966/04)
13 November 2012
The case concerned three women of Roma origin who complained in particular that they
had been sterilised without their full and informed consent, that the authorities’ ensuing
investigation into their sterilisation had not been thorough, fair or effective and that their
ethnic origin had played a decisive role in their sterilisation.
The Court held that there had been two violations of Article 3 (prohibition of inhuman
and degrading treatment) of the Convention, firstly on account of the first and second
applicants’ sterilisation, and secondly in respect of the first and second applicants’
allegation that the investigation into their sterilisation had been inadequate. The Court
further found a violation of Article 8 (right to respect for private and family life) in
respect of the first and second applicants and no violation of Article 13 (right to an
effective remedy) of the Convention. As regards the third applicant, the Court decided to
strike the application out of its list of cases, under Article 37 § 1 (c) of the Convention.
See also:
- R.K. v. the Czech Republic (no. 7883/08), decision (strike out) of 27 November
2012
- G.H. v. Hungary (no. 54041/14), decision (inadmissibility) of 9 June 2015

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Factsheet – Reproductive rights

Surrogacy
Mennesson and Others v. France and Labassee v. France
26 June 2014
These cases concerned the refusal to grant legal recognition in France to parent-child
relationships that had been legally established in the United States between children
born as a result of surrogacy treatment and the couples who had had the treatment. The
applicants complained in particular of the fact that, to the detriment of the children’s
best interests, they were unable to obtain recognition in France of parent-child
relationships that had been legally established abroad.
In both cases the Court held that there had been no violation of Article 8 (right to
respect for private and family life) of the Convention concerning the applicants’ right to
respect for their family life. It further held in both cases that there had been a violation
of Article 8 concerning the children’s right to respect for their private life. The Court
observed that the French authorities, despite being aware that the children had been
identified in the United States as the children of Mr and Mrs Mennesson and Mr and Mrs
Labassee, had nevertheless denied them that status under French law. It considered that
this contradiction undermined the children’s identity within French society. The Court
further noted that the case-law completely precluded the establishment of a legal
relationship between children born as a result of – lawful – surrogacy treatment abroad
and their biological father. This overstepped the wide margin of appreciation left to
States in the sphere of decisions relating to surrogacy.
See also: Foulon and Bouvet v. France, judgment of 21 July 2016; Laborie v.
France, judgment of 19 January 2017.
D. and Others v. Belgium (no. 29176/13)
8 July 2014 (decision – partly struck out of the list of cases; partly inadmissible)
This case concerned the Belgian authorities’ initial refusal to authorise the arrival on its
national territory of a child who had been born in Ukraine from a surrogate pregnancy,
as resorted to by the applicants, two Belgian nationals. The applicants relied in particular
on Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for
private and family life) of the Convention.
In view of developments in the case since the application was lodged, namely the
granting of a laissez-passer for the child and his arrival in Belgium, where he has since
lived with the applicants, the Court considered this part of the dispute to be resolved and
struck out of its list the complaint concerning the Belgian authorities’ refusal to issue
travel documents for the child. The Court further declared inadmissible the remainder
of the application. While the authorities’ refusal, maintained until the applicants had
submitted sufficient evidence to permit confirmation of a family relationship with the
child, had resulted in the child effectively being separated from the applicants, and
amounted to interference in their right to respect for their family life, nonetheless,
Belgium had acted within its broad discretion (“wide margin of appreciation”) to decide
on such matters. The Court also considered that there was no reason to conclude that
the child had been subjected to treatment contrary to Article 3 of the Convention during
the period of his separation from the applicants.
Paradiso and Campanelli v. Italy
24 January 2017 (Grand Chamber)
This case concerned the placement in social-service care of a nine-month-old child
who had been born in Russia following a gestational surrogacy contract entered into
with a Russian woman by an Italian couple (the applicants); it subsequently transpired
that they had no biological relationship with the child. The applicants complained,
in particular, about the child’s removal from them, and about the refusal to acknowledge
the parent-child relationship established abroad by registering the child’s birth
certificate in Italy.

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Factsheet – Reproductive rights

The Grand Chamber found, by eleven votes to six, that there had been no violation of
Article 8 (right to respect for private and family life) of the Convention in the applicants’
case. Having regard to the absence of any biological tie between the child and the
applicants, the short duration of their relationship with the child and the uncertainty of
the ties between them from a legal perspective, and in spite of the existence of a
parental project and the quality of the emotional bonds, the Grand Chamber held that a
family life did not exist between the applicants and the child. It found, however, that the
contested measures fell within the scope of the applicants’ private life. The Grand
Chamber further considered that the contested measures had pursued the legitimate
aims of preventing disorder and protecting the rights and freedoms of others. On this
last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s
exclusive competence to recognise a legal parent-child relationship – and this solely in
the case of a biological tie or lawful adoption – with a view to protecting children.
The Grand Chamber also accepted that the Italian courts, having concluded in particular
that the child would not suffer grave or irreparable harm as a result of the separation,
had struck a fair balance between the different interests at stake, while remaining within
the room for manoeuvre (“margin of appreciation”) available to them.
Advisory opinion concerning 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, requested by the French COurt
of Cassation (Request No. P16-2018-001)
10 April 2019 (Grand Chamber)
This case concerned the possibility of recognition in domestic law of a legal parent-child
relationship between a child born abroad through a gestational surrogacy arrangement
and the intended mother, designated in the birth certificate legally established abroad as
the “legal mother”, in a situation where the child was conceived using the eggs of a
third-party donor and where the legal parent-child relationship with the intended father
has been recognised in domestic law.
The Court found that States were not required to register the details of the birth
certificate of a child born through gestational surrogacy abroad in order to establish the
legal parent-child relationship with the intended mother, as adoption may also serve as a
means of recognising that relationship.
It held in particular that, in a situation where a child was born abroad through a
gestational surrogacy arrangement and was conceived using the gametes of the
intended father and a third-party donor, and where the legal parent-child relationship
with the intended father has been recognised in domestic law,
1. 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”;
2. the child’s right to respect for private life does not require such recognition to take the
form of entry in the register of births, marriages and deaths of the details of the birth
certificate legally established abroad; another means, such as adoption of the child by
the intended mother, may be used.
C and E v. France (nos. 1462/18 and 17348/18)
19 November 2019 (Committee decision on the admissibility)
This case concerned the French authorities’ refusal to enter in the French register of
births, marriages and deaths the full details of the birth certificates of children born
abroad through a gestational surrogacy arrangement and conceived using the gametes
of the intended father and a third-party donor, in so far as the birth certificates
designated the intended mother as the legal mother.
The Court declared the two applications inadmissible as being manifestly ill-founded.
It considered in particular that the refusal of the French authorities was not
disproportionate, as domestic law afforded a possibility of recognising the parent-child
relationship between the applicant children and their intended mother by means of

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Factsheet – Reproductive rights

adoption of the other spouse’s child. The Court also noted that the average waiting time
for a decision was only 4.1 months in the case of full adoption and 4.7 months in the
case of simple adoption.
D v. France (n° 11288/18)
16 juillet 2020
This case concerned the refusal to record in the French register of births, marriages and
deaths the details of the birth certificate of a child born abroad through a gestational
surrogacy arrangement in so far as the certificate designated the intended mother, who
was also the child’s genetic mother, as the mother. The child, the third applicant in the
case, was born in Ukraine in 2012. Her birth certificate, issued in Kyiv, named the first
applicant as the mother and the second applicant as the father, without mentioning the
woman who had given birth to the child. The two first applicants, husband and wife, and
the child complained of a violation of the child’s right to respect for her private life, and
of discrimination on the grounds of “birth” in her enjoyment of that right.
The Court held that there had been no violation of Article 8 (right to respect for family
life) of the Convention, finding that, in refusing to record the details of the third
applicant’s Ukrainian birth certificate in the French register of births in so far as it
designated the first applicant as the child’s mother, France had not overstepped its
margin of appreciation in the circumstances of the present case. It also held that there
had been no violation of Article 14 (prohibition of discrimination) of the Convention
read in conjunction with Article 8, accepting that the difference in treatment of which
the applicants complained with regard to the means of recognition of the legal
relationship between such children and their genetic mother had an objective and
reasonable justification. In its judgment, the Court noted in particular that it had
previously ruled on the issue of the legal parent-child relationship between a child and its
intended father where the latter was the biological father, in its judgments in Mennesson
and Labassee (see above). According to its case-law, the existence of a genetic link did
not mean that the child’s right to respect for his or her private life required the legal
relationship with the intended father to be established specifically by means of the
recording of the details of the foreign birth certificate. The Court saw no reason in the
circumstances of the present case to reach a different decision regarding recognition of
the legal relationship with the intended mother, who was the child’s genetic mother.
The Court also pointed to its finding in advisory opinion no. P16-2018-001 (see above)
that adoption produced similar effects to registration of the foreign birth details when it
came to recognising the legal relationship between the child and the intended mother.
Valdís Fjölnisdóttir and Others v. Iceland
18 May 2021
This case concerned the non-recognition of a parental link between the first two
applicants and the third applicant, who was born to them via a surrogate mother in the
United States. The first and second applicants were the third applicant’s intended
parents, but neither of them was biologically related to him. They had not been
recognised as the child’s parents in Iceland, where surrogacy is illegal. The applicants
complained, in particular, that the refusal by the authorities to register the first and
second applicants as the third applicant’s parents had amounted to an interference
with their rights.
The Court held that there had been no violation of Article 8 (right to respect for family
life) of the Convention. It considered, in particular, that despite the lack of a biological
link between the applicants, there had been “family life” in the applicants’ relationship.
However, the Court found that the decision not to recognise the first two applicants as
the child’s parents had had a sufficient basis in domestic law and, taking note of the
efforts on the parts of the authorities to maintain that “family life”, ultimately adjudged
that Iceland had acted within its discretion in the present case.

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Factsheet – Reproductive rights

S.-H. v. Poland (nos. 56846/15 and 56849/15)

16 November 2021 (decision on the admissibility)
The parents of the applicants - twin brothers who were dual Israeli and United States
nationals and lived in Israel– were a same-sex couple, who in 2010 had the children
conceived via a surrogacy agreement. The applicants were confirmed as children of
their parents by the Superior Court of California. The case concerned their application for
Polish citizenship (one of their parents was a Polish national). They complained
in particular of the refusal by the Polish authorities to recognise their relationship
with their biological father, which they alleged had been because their parents were a
same-sex couple.
The Court declared the applications inadmissible, finding that there was no factual
basis for concluding that there had been an interference with the right to respect for
private and family life in the present case. While it acknowledged, in particular, that the
applicants would not have Polish and European citizenship as a result of those decisions,
it pointed out that they would still enjoy free movement in Europe. For the Court, they
had not put forward any claims of hardship they had suffered as a result of the
decisions, either before the Court or the domestic authorities. In particular, the parent-
child link in this case, although not recognised by the Polish authorities, was recognised
in the State where the applicants resided. Legal recognition in the United States had
meant that the applicants had not been left in a legal vacuum both as to their citizenship
and as to the recognition of the legal parent-child relationship with their biological father.
A.L. v. France (no. 13344/20)
7 April 2022
This case concerned the compatibility with the right to respect for private life of the
domestic courts’ refusal to legally establish the applicant’s paternity vis-à-vis his
biological son – who had been born in the framework of a gestational surrogacy contract
in France – after the surrogate mother had entrusted the child to a third couple.
The applicant submitted that the dismissal of his application to establish his paternity in
respect of his biological son amounted to a disproportionate interference with his right to
respect for his private life, lacking any legal basis.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention, on account of the French State’s failure to honour its
duty of exceptional diligence in the particular circumstances of the case. It emphasised,
however, that the finding of a violation should not be interpreted as questioning the
Court of Appeal’s assessment of the child’s best interests or its decision to dismiss the
applicant’s requests, as upheld by the Court of Cassation. In the present case, the Court
noted, in particular, that the Court of Appeal, backed up by the Court of Cassation, had
duly prioritised the best interests of the child, which it had been careful to characterise in
practical terms having regard to the biological reality of the paternity claimed by the
applicant. In balancing the applicant’s right to respect for his private life, on the one
hand, with his son’s right to respect for his private and family life, which required
compliance with the principle of prioritising the child’s best interests, the Court
considered that the grounds set out by the domestic courts to justify the impugned
interference had been relevant and sufficient for the purposes of Article 8 § 2 of
the Convention. Nevertheless, the Court noted that the proceedings had taken a total of
six years and about one month, which was incompatible with the requisite duty of
exceptional diligence. The child had been about four months old when the case had gone
to court, and six-and-a-half years old when the domestic proceedings had ended.
In cases involving a relationship between a person and his or her child, the lapse of a
considerable amount of time could lead to the legal issue being determined on the basis
of a fait accompli.

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Factsheet – Reproductive rights

D.B. and Others v. Switzerland (nos. 58817/15 and 58252/15)

22 November 2022
This case concerned a same-sex couple who were registered partners and had entered
into a gestational surrogacy contract in the United States under which the third applicant
had been born. The applicants complained in particular that the Swiss authorities had
refused to recognise the parent child relationship established by a US court between the
intended father (the first applicant) and the child born through surrogacy (the third
applicant). The Swiss authorities had recognised the parent child relationship between
the genetic father (the second applicant) and the child.
The Court held that there had been a violation of Article 8 (right to respect for
private life) of the Convention in respect of the applicant child and no violation of
Article 8 (right to respect for family life) in respect of the intended father and the
genetic father. Regarding the child, it noted in particular that, at the time he was born,
domestic law had afforded the applicants no possibility of recognition of the parent-child
relationship between the intended parent and the child. Adoption had been open to
married couples only, to the exclusion of those in registered partnerships. Not until
1 January 2018 had it become possible to adopt the child of a registered partner. Thus,
for nearly seven years and eight months, the applicants had had no possibility of
securing definitive recognition of the parent child relationship. The Court therefore held
that for the Swiss authorities to withhold recognition of the lawfully issued foreign birth
certificate in so far as it concerned the parent-child relationship between the intended
father and the child born through surrogacy in the United States, without providing for
alternative means of recognising that relationship, had not been in the best interests of
the child. In other words the general and absolute impossibility, for a significant period
of time, of obtaining recognition of the relationship between the child and the first
applicant had amounted to a disproportionate interference with the third applicant’s right
to respect for private life. Switzerland had therefore overstepped its margin of
appreciation by not making timely legislative provision for such a possibility. Regarding,
on the other hand, the first and second applicants, the Court first observed that the
surrogacy arrangement which they had used to start a family had been contrary to Swiss
public policy. It went on to hold that the practical difficulties they might encounter in
their family life absent recognition under Swiss law of the relationship between the first
and third applicants were within the limits of compliance with Article 8 of the Convention.
K.K. and Others v. Denmark (no. 25212/21)
6 December 2022
This case concerned the refusal to allow the first applicant to adopt the two other
applicants, who were twins, as a “stepmother” in Denmark. The twins were born to a
surrogate mother in Ukraine who had been paid for her service under a contract
concluded with the first applicant and her partner, the biological father of the children.
Under Danish law, adoption was not permitted in cases where payment had been made
to the person who had to consent to the adoption.
The Court held that in the present case there had been no violation of Article 8 (right
to respect for family life) of the Convention, finding that there had been no damage to
the family life of the applicants, who lived together with the children’s father
unproblematically. It also held that there had been no violation of Article 8 (right to
respect for private life) of the Convention as regards the mother’s right to respect for her
private life as the domestic authorities had been correct in ruling so, in order to protect
the public interest in controlling paid surrogacy, over the first applicant’s right to respect
for private life. The Court held, however, that there had been a violation of Article 8
as regards the right to respect for the private lives of the two applicant children, finding
that the Danish authorities had failed to strike a balance between their interests and the
societal interests in limiting the negative effects of commercial surrogacy, in particular as
regards their legal situation and legal relationship to the first applicant.

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Factsheet – Reproductive rights

C v. Italy (no. 47196/21)

31 August 2023
This case concerned the Italian authorities’ refusal to recognise the legal parent-child
relationship established by a Ukrainian birth certificate between the applicant, a child
born through a gestational surrogacy arrangement abroad, and her biological father and
intended mother.
The Court held that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention with regard to the establishment of a legal parent-child
relationship between the applicant and her biological father, and no violation of
Article 8 of the Convention with regard to the establishment of a legal parent-child
relationship between the applicant and her intended mother. The Court recalled in
particular that, as it had found in previous cases, under Article 8 of the Convention,
domestic law had to provide a possibility of recognition of the legal relationship between
a child born through a surrogacy arrangement abroad and the intended father where he
was the biological father. Concerning, firstly, legal parent-child relationship between the
applicant and her biological father, the Court noted that in the present case the domestic
courts had been unable to take a swift decision to protect the applicant’s interest in
having her legal relationship with her biological father established. The applicant, aged
four, had been kept since birth in a state of protracted uncertainty as to her personal
identity and, as she had no legally established parentage, was considered a stateless
person in Italy. The Court therefore held that, despite the margin of appreciation
afforded to the State, the Italian authorities had failed to fulfil their positive obligation to
ensure the applicant’s right to respect for her private life under the Convention. As to
legal parent-child relationship between the applicant and her intended mother, the Court
found that while Italian law did not allow for the details of the birth certificate to be
registered concerning the intended mother, it nevertheless afforded her the possibility of
legally recognising the child by means of adoption. By refusing to enter the details of the
applicant’s Ukrainian birth certificate in the relevant Italian civil register in so far as it
designated the intended mother as her mother, the respondent State had thus not
exceeded its margin of appreciation.
See also, recently:
A.M. v. Norway (no. 30254/18)
24 March 2022

Bonzano and Others v. Italy, Modanese v. Italy and Nuti and Others c. Italy
30 May 2023 (decisions on the admissibility – Committee)

Unborn child and right to life

Vo v. France
8 July 2004 (Grand Chamber)
Owing to a mix-up with another patient with the same surname, the applicant’s amniotic
sack was punctured, making a therapeutic abortion necessary. She maintained that the
unintentional killing of her child should have been classified as manslaughter.
The Court held that there had been no violation of Article 2 (right to life) of the
Convention. It found that it was not currently desirable or possible to rule on whether an
unborn child was a person under Article 2 of the Convention. And, there was no need for
a criminal law remedy; remedies already existed allowing the applicant to prove medical
negligence and to seek compensation.

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Factsheet – Reproductive rights

Use of surgical symphysiotomy

L.F. v. Ireland (no. 62007/17), K.O’S v. Ireland (no. 61836/17) and W.M. v.
Ireland (no. 61872/17)
10 November 2020 (decisions on the admissibility)
In the 1960s each of the applicants underwent surgical symphysiotomies 11 in maternity
hospitals either during or in advance of labour. Before the Court, they complained that
the use of the procedure in Ireland had not been the subject of a Convention-compliant
domestic investigation and that, in addition, they had been unable to fully litigate their
claims at the domestic level. One applicant also complained that in allowing
symphysiotomies to take place the State had failed in its obligation to protect women
from inhuman and degrading treatment.
The Court declared the applications inadmissible. In the case of K.O’S, in particular,
the Court found the complaint to be inadmissible as the applicant had failed to exhaust
domestic remedies. In the other two cases it found the applicants’ complaints to be
manifestly ill-founded, indicating that a question regarding the exhaustion of domestic
remedies also arose.

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11
. A surgical symphysiotomy involves partially cutting through the fibres of the pubis symphysis (the joint
uniting the pubic bones) so as to enlarge the capacity of the pelvis. The procedure allows the pubis symphysis
to separate so as to facilitate natural childbirth where there is a mechanical problem.

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