Refusal in adoption of the children, born by the surrogate mother.

The authors K.K., Danish citizen, is the mother of the other two coauthors C1 and C2, who are twins.
In 2013 a surrogate mother in Ukraine gave birth to C1 and C2 following a surrogacy agreement with the intended parents of the children, K.K. and her husband, who was the biological father. The birth certificates registered K.K. and her husband as the parents. In 2014 the children were brought to Denmark.
Although K.K. was not recognized as the mother under Danish law, she was given joint custody of the children. The children were given Danish citizenship through their father.
K.K. also applied to adopt the children. That application was refused for the reason that she had lived in Denmark with the children only for four days. That decision was upheld in 2016 by the National Social Appeals Board. K.K. took a case before the courts against that decision. In 2020, the Supreme Court found against K.K. a decision. It noted the payment of 32,265 euros to the clinic in Ukraine and the surrogate mother’s consent to the adoption, and therefore held that the adoption ran counter to section 15 of the Adoption Act (that provision banned adoption in cases where consent had to be given by someone who had been paid). It furthermore held – with reference to the Court’s case-law – that the refusal did not run counter to Article 8 of the Convention. It referred to the Court’s finding acceptable a similar ban in France that was intended on deterring its nationals from going abroad to make use of assisted reproductive methods that were forbidden in that State. Among many other things, it observed that the Court had asserted that “the best interests of the child do not merely involve respect for the child’s right to private life, but also other components that do not necessarily weigh in favour of recognition of a legal parent-child relationship between the child and the intended mother … [including] protection against risks of abuse entailed by surrogacy arrangements”.
The dissenting opinion in the case stated that “children being barred from obtaining recognition that the person whom they have regarded as their mother for their entire life [was] also their mother from a legal point of view” would infringe the children’s rights under Article 8.
Relying on Article 8 (right to respect for private and family life), the authors complained that the Supreme Court’s judgment had infringed their rights.

The ECHR had decided that there is no violation of Article 8 (right to respect for family life) of the ECHR, finding in particular that:
– there had been no damage to the family life of K.K., who lived together with the children’s father unproblematically;
– no violation of Article 8 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 K.K.’s Article 8 rights;
The ECHR found a violation of Article 8 as regards the right to respect for the private lives of the two children. The Danish authorities had failed to strike a balance between the interests of the children and the societal interests in limiting the negative effects of commercial surrogacy, in particular as regards their legal situation and legal relationship to K.K.

17. November 2023

HUDOC 25212-21