Judge Jelić noted in her dissenting opinion that the Court in AM had only focused on the private life aspect of Article 8 ECHR, instead of the family life aspect of that Article [30-32]. The Judge underlined the missed opportunity to assess the proportionality of the interference with intended mother’s family aspect of the right, referring to applicant’s interest in developing family relationships as per Marckx v Belgium [31]; recognition of family life being dependent on the ‘real existence in practice of close personal ties’ (Paradiso and Campanelli v Italy [140]);  and the principle that ‘[w]here there is no legal recognition between a child and his or her parents, the Court observes the existence of de facto family ties’ (Johnston and Others v Ireland [56]).

The decision seems curious even when looking at the doctrine of the child’s best interest due to the visible overlooking of the importance of a child becoming familiar and having an existing relationship with an intended parent from the very beginning of the pregnancy as well as the strengthening of this bond (which had already been forged between the child and the applicant).

In fact, Judge Jelić considered that the Court had failed to take into account the de facto family situation and several factual aspects which would have been relevant to the matter at hand, including recognition of the birth certificate, principles on the best interest of a child, as well as the issues with the domestic interpretation of the couple ‘raising a child together’ [33-42].

The Court failed to account for the State’s refusal to correctly apply relevant case law and a varied approach to the current case due to different marital status which resulted in discriminatory treatment of the applicant [47]. The ECtHR jurisprudence clearly states that differing treatment on the grounds of birth within or out of wedlock could only be made if very weighty reasons existed (Sahin v Germany; Mazurek v France; Camp and Bourimi v the Netherlands). Such reasons, however, did not exist in the analysed case. Not taking into account relevant case law resulted in an arguably unjust and discriminatory outcome towards the applicant based on flawed and fragmented legal analysis.

The majority of recent cases, including growing recognition of the rights of LGBTQ+ community members, demonstrate that the ECtHR is awarding increasingly more rights to non-conventional family constellations and people with differing sexual orientations or identities [49]. Some of this case law could be relevant and applied analogously to the AM matter, including X and Others v Austria; Salgueiro da Silva Mouta v Portugal, or EB v France. This lack of general consistency in the Court’s jurisprudence is therefore curious. As Judge Jelić rightfully noted, it is the Court’s role ‘to afford equal protection to all the citizens of its Contracting Parties and to adapt, in line with the “living instrument” doctrine, to new emerging social concepts’ [50].

Overall, the visible asymmetry of rights and protections in the very particular situation of designated mothers’ results in the lack of consideration of gender equality as well as general equitability, such as in the discussed case. This discussion raises further questions concerning the meaning of family and why a more holistic approach to what its definition entails is merited with special attention paid to the so-far overlooked rights of the intended mothers. Similar concerns should be considered in light of same-sex couples where only one or neither of the parents are biological ones and can only be classified as ‘intended’ parents – especially in light of the recent efforts of States (at least in the European context) to recognise the uniquely vulnerable position of selected groups of individuals, and the particular threat of having their rights violated as a result of their protected characteristics. It is high time that similar considerations entered ‘the chat’ on surrogacy cases.

Some argue that ‘[s]urrogacy indeed entails the commodification of women’s body for reproductive purposes and the selling of children’ and a decision was taken jointly in 2021 by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and the Committee on Women’s Rights and Gender Equality (FEMM) that ‘sexual exploitation for surrogacy and reproductive purposes […] is unacceptable and a violation of human dignity and human rights’. Vulnerability of surrogate mothers from poor countries and deprived backgrounds has been noted. However, on the other hand, some have attempted to analyse the phenomenon from the perspective of potential landscapes of empowerment.

The debate has thus far been centred around surrogate mothers and the best interest of the child. Various abuse risks and challenges have been identified regarding the children born out of surrogacy arrangements as well as the vulnerable biological mothers which has resulted in such strict legal frameworks. However, studies have confirmed that the arrangement can be conducted in a safe and respectful manner where the biological mother has little difficulty separating with the children. Empirical studies have also reported that surrogacy appears to be predominantly a positive experience both for the surrogates and intended parents.

However, this discussion canvasses the other dimension of the debate, that is, the vulnerability and ineffective rights’ protections of the intended mothers. Looking into the case law of the Strasbourg Court (European Court of Human Rights (ECtHR)), Judge Jelić in her dissenting opinion in the case of AM v Norway, provided relevant observations while disagreeing with the majority view that there was no violation of Article 8 ECHR (European Convention on Human Rights) nor Article 14 (applied in conjunction with Article 8). It was stated that the position of the majority not only points to national legislation flaws in Norway, but also reveals several issues with the Court’s ‘process-based approach in assessing the applicant’s capacity for becoming a legal mother while being biologically incapable herself of procreating’ [24].

Starting with identifying relevant legal shortcomings, the Judge considered the case of Mannesson v France, stating that even though States have a margin of appreciation concerning the legal recognition of the parent-child relationship, ‘where a particularly important facet of an individual’s identity was at stake, such as when the legal parent-child relationship was concerned, the margin allowed to the State was normally restricted’ (Advisory Opinion, [44]). As such, it was rightfully argued by the judge that considering best interest of a child, the margin afforded to national authorities should be reduced ‘to allow for the primordial protection of the child’s interests’ [25]. In addition to the reasons outlined above, the Judge stated that other relevant criteria should have been taken into account as an essential part of the assessment, including ‘the joint intent of the (prospective) parents in having and raising the child, the inability of the intended mother to procreate by natural means, and the circumstances leading up to the pregnancy and birth of the child’ [26].

The wide margin and rigid approach by the Norwegian authorities does not account for the sensitivities of such complicated situations, vulnerability of parties concerned, nor diverging circumstances [27]. Therefore, a case-by-case individualised approach has been suggested with variable levels of the width of margin afforded. In the aforementioned case, the State had legitimate interests in view, such as protection from abuse and exploitation, however, there was no evidence as to such being present. Consequently, it is debatable if the broad prohibition against surrogacy can be used as a justification for rejecting the applicant’s claim to be recognised as the child’s legal mother [28], utterly overlooking the vulnerability of the position of the intended mother as well as the asymmetry that she faces as compared to the rights and protections afforded to the biological (intended) father.

Several instances of unfair and discriminatory treatment were noted [43-50], including the failure to award the applicant with legal recognition of motherhood which resulted in the father retaining sole authority and refusing the applicant any right to visit or stay in contact with the child. This created a certain imbalance of power, placing the absolute decision-making power in the sole hands of the father who may retaliate against the mother in face of a conflict, for instance.

The overly restrictive laws were argued to have effectively:

‘ruled out any favourable outcome for the applicant […] as the authorities could not consider crucial                     aspects affecting her situation, such as the fact that the applicant was biologically unable to procreate,                 that E.B. [the biological father] and she had tried to initiate a pregnancy on multiple occasions, that they             had been in a long-term relationship before their separation, that they were both the intended parents of             the child, and that they had agreed to raise the child together’ [29].

As such, the applicant was placed in a disadvantaged position where the applied law failed to account for her uniquely vulnerable position and afford any real chance of being given the same standing and recognition as an intended parent as that of the biological father. Thus, in pursuit of protection and equality for the (allegedly) exploited biological mothers, have the legal justice systems entirely forgotten about the ‘other’ women? Or, have we simply decided to cover our eyes, blind and deaf to the struggles of the intended mothers?

On December 10^th, the ECtHR’s GC (Grand Chamber) issued its last 2021 judgment in Adbi Ibrahim, a truly sad case. The applicant, a Muslim Somali refugee, arrived in Norway as a single underage mother. The authorities considered that she could not give her ten-month-old son (X) proper care and ended up placing him with “Norwegian Christian” foster parents. For three and a half years, the applicant was allowed very limited contact with him. Then he was freed for adoption. Naturally, she turned to Strasbourg and, although she won before the Chamber under Article 8 ECHR,  the case was referred to the GC, on her initiative, because it was felt that the Article 9 ECHR angle had not been sufficiently explored.  

The GC, exercising “close scrutiny”, essentially upheld the Chamber’s findings concerning family life: nothing had been pleaded that would “justify a complete and definite severance of the ties” between the applicant and X. As for the religious-freedom dimension, the GC considered that the applicant had an “interest in allowing (sic) X to retain at least some ties to his cultural and religious origins”; and this interest would have been protected had the ties between them not been severed.

This does not add much to existing Article 9 case law and the referral’s anticlimactic outcome makes one wonder whether accepting it was a good idea. Could the ECtHR have done better? In fairness to the GC, it would have been difficult to allow a claim that people’s Islamic beliefs exempted them from the application of all rules on adoption (§126). Nor could the GC have relied on the fact that “religiously neutral” child placements de facto benefit religious majorities (§96); the ECHR was not meant to create minority ‘group rights’. At the same time, it also seems unfair to present the applicant’s claim as absolutely wanting her son to be raised as a Muslim by his foster family. It is true that finding a foster home that corresponded to the applicant’s cultural background ought not to have been the only way of ensuring respect for her human rights. However, one should not forget that X was given to members of the “Norwegian Missionary Society” whose lives revolved around their church. When the placement decision was taken, it must have been obvious that the huge differences between the beliefs systems of the foster parents and the applicant would become an insurmountable obstacle to the latter’s reunification with her son leading to estrangement.

Seen in this light, Abdi Ibrahim is probably more about Article 8 than 9. However, the underlying human story shows that the case is also about integration. The applicant, who was trying to find a balance between tradition and modernity (§39), confided to a social worker her fear that X would “become like them”. Thereupon, she was invited to accept that certain things were done differently “here in Norway”; notably, children chose their religion themselves. Yet one of the reasons why the foster parents wished to adopt X was to christen him (cf. §127). What was the applicant to make of such ambivalence? And could one reasonably expect this not to have any impact on her integration prospects?

Taking one’s grievances to Strasbourg is certainly one way of having one’s confidence in European values restored. However, this can only be obtained if judgments deliver clear messages. And this was perhaps not the case with the cryptic language used to dispose of Abdi Ibrahim’s complaint regarding the differences between her and the foster parents’ beliefs systems. Moreover, Abdi Ibrahim’s victory notwithstanding, the GC felt unable to order any practical (“individual”) measures in her favour under Article 46 ECHR, considering that these could raise issues in connection with X’s and his new parents’ family life that had not been addressed in its judgment. However, does this not again amount to ‘ambivalence’ given that the adoptive parents had been allowed to intervene in the ECtHR proceedings? It may be argued that overrating the potential impact of Strasbourg litigation is counterproductive. But, as this new year begins, why cannot we all (including Strasbourg) try to be a bit less pessimistic about what it takes to make people feel understood, assisted and ultimately integrated “here in Europe”?