Dividing the cases discussed in this study into neat categories of analysis is not always straightforward. The case ofGas and Dubois v. France could very well be categorised under assisted reproduction for same-sex couples, but the temporal contexts do matter: in the 2000s and 2010s, it is not a news item that female couples have babies with the help of donor insemination, and the legal question in the case was more about second-parent adoption, and merited to be discussed together with X. and others v. Austria, a very similar case.
However, complaints similar toGas and Dubois have appeared in the ECHR already in the 1980s and 1990s, concerning both transgender persons and lesbian women. In the Grand Chamber judgement ofX. Y. and Z. v. the United Kingdom from 199760, a key case in many ways, a transgender person, X, and his partner, Y, sought recognition of parental status for their child, Z, who had
58N.Q., M.S. and S.S. v. Italy.
59Giubergia; Giubergia-Gaveglia; Giubergia; Cruz v. Italy.
60X, Y and Z v. the United Kingdom, 22 April 1997, Reports of Judgments and Decisions 1997-II.
been conceived with donated sperm from a third party and clinically assisted insemination. There are also other cases discussed in this sub-chapter that resulted in inadmissibility decisions in earlier years.
InX. Y. and Z. v. the United Kingdom from 1997, X, a post-operative male-to-female transgender person, and Y, his female partner, were asked to apply for parental recognition of X as the father of the possible child to be born from medically assisted insemination by the ethics committee of the hospital that granted them permission for the treatment. When X and Y first applied for assisted reproduction services with donor sperm, the ethics committee refused to grant them this treatment. X and Y appealed, providing the ethics committee with research findings according to which, for example, “in a study of thirty-seven children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect”61. After the appeal, the ethics committee gave its consent to provide X and Y with the requested treatment.
The committee “asked X to acknowledge himself to be the father of the child within the meaning of the English 1990 Human Fertility and Embryology Act”62. Under this piece of legislation, the male partner of an unmarried woman giving birth by AID would be legally designated as the father of the child, not the sperm donor. First, X enquired from the Registrar General63 whether he could be registered as the father of Z. He got a reply stating that
“only a biological man could be regarded as a father for the purposes of registration”64. X and Y tried to register X as the father on Z’s birth certificate, but they were not permitted to do so, and this part of the certificate was left blank. At the time, English law did not recognise that a person’s sex could be changed by medical treatment. Despite X having undergone gender reassignment surgery, living as a man and acting as Z’s father, the English courts treated the cohabitation of X and Y as a relationship between two women. X and Y were encouraged to get a ‘joint residence order’, obtainable through the courts, which would have given X parental responsibility over Z until she reached majority.
The European Commission on Human Rights declared the complaints made by X and Y under Articles 8 and 14 admissible and dismissed the complaints under Articles 12 and 13 that had also been filed. The Commission was of the opinion that there had been a violation of Article 8 and that it was not necessary to consider whether there had been a violation of Article 14. In their submissions to the European Court, X and Y argued that they shared
61X, Y and Z v. the United Kingdom, para 15. The reference given in the case material is Green 1978.
62X, Y and Z v. the United Kingdom, para 15.
63 Synonymous with the General Register Office of England and Wales, the government authority responsible for the registration of births, deaths and marriages, but since 2005, also of same-sex civil partnerships and gender recognition for transgender persons.
64X, Y and Z v. the United Kingdom, para 17.
Filiation: Adoption and Assisted Procreation
‘family life’ since the birth of their first child, Z. They drew attention to the doctrine of evolutive interpretation of the European Convention in the jurisprudence of the Commission and the Court, where “social reality, rather than formal legal status, was decisive”65. They also argued that due to X’s gender reassignment process and the social role he had assumed in the family,
“to all appearances, the applicants lived as a traditional family”66. In turn, the British Government maintained that as X’s biological sex could not be completely modified to that of a male, X and Y were to be treated as two cohabiting women and that a family could not be established by two persons of the same sex who were unrelated. Furthermore, the Government argued that X could not be seen to share family life with Z, as they were not related to each other by “blood, marriage or adoption”67. According to English legal discourse these are the cornerstones of legally valid kinship ties.
Interestingly enough, the Commission was of the opinion that “aside from the fact that X was registered at birth as a woman and was therefore under a legal incapacity to marry Y or be registered as Z’s father, the applicants’
situation was indistinguishable from the traditional notion of ‘family life’”68 Thus it is likeness to the ‘traditional’ family model that gave this case a better footing according to the Commission, which had dismissed previous cases of families formed by lesbian couples as inadmissible. The European Court expressed that ‘family life’ under Article 8 was not limited to families formed by married couples. Other de facto relationships could be included in the notion of family life, as in the cases ofMarckx v. Belgium (1979),Keegan v.
Ireland (1994) and Kroon and others v. the Netherlands (1994). As to the essence of family life, the Court makes the following statement, which has since been widely cited in the case law of the ECHR and relevant literature:
When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.
X, Y and Z v. the United Kingdom, para 36
The Court came to the conclusion thatde facto family ties linked X, Y and Z and that Article 8 applied. X and Y elaborated some of the consequences following from the absence of a legal family tie between X and Z. For example, Z was not allowed to inherit X without the existence of a will or succeed to some tenancies in the event of X’s death.
65X, Y and Z v. the United Kingdom, para 33.
66X, Y and Z v. the United Kingdom, para 33.
67X, Y and Z v. the United Kingdom, para 33.
68X, Y and Z v. the United Kingdom, para 35.
The Government representative maintained that X, Y and Z were free to live together as a family and that the concerns expressed above were “highly theoretical”69. A joint residence order would give X certain parental rights and duties. Interestingly, the Court observed that “the community as a whole has an interest in maintaining a coherent system of family law which places the best interests of the child at the forefront”70 and it was “not clear that [an amendment to the law] would necessarily be to the advantage of [children such as Z]”71. The Court absolved itself from any greater responsibility towards the
‘best interest’ of Z by saying that “there is uncertainty with regard to how the interests of children in Z’s position can best be protected”72 as well as by concluding that:
Given that transsexuality [sic] raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 (art. 8) cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision (art.
8). It follows that there has been no violation of Article 8 of the Convention (art. 8).
X, Y and Z v. the United Kingdom, para 52
The Court did not elaborate what these ‘complex issues’ in question are, but backed up the decision with a lack of European consensus on the matter. It found that article 8 was applicable but that there was no violation of it (14 votes to 6) and that there was no need to consider the case under article 14 (17 votes to 3). The legal situation of transgender persons differs substantially from that of homosexuals and bisexuals in many ways. What this particular case highlights is that unlike in parenting by same-sex couples, transgender parenting often conforms to prevalent gender roles and the model of the heterosexual family, and as can be seen from the above description, X and Y were arguing their case very much on their similarity to a ‘traditional family’.
In his concurring opinion, judge de Meyer touched upon the same issue of similitude: “There is certainly family life between Y and Z. However, between X and the two other applicants there is only the ‘appearances’ of ‘family ties’”73. Furthermore, de Meyer states that “it is self-evident that a person who is
69X, Y and Z v. the United Kingdom, para 46.
70X, Y and Z v. the United Kingdom, para 46.
71X, Y and Z v. the United Kingdom, para 46.
72X, Y and Z v. the United Kingdom, para 51.
73 Concurring opinion of judge de Meyer,X, Y and Z v. the United Kingdom.
Filiation: Adoption and Assisted Procreation
manifestly not the father of a child has no right to be recognised as her father”74.What makes a kinship relation ‘manifest’? Adherence to the
‘symbolic order’ and the presence of two different sexes? In his concurring opinion, Judge Pettiti notes that “family, in general, cannot be a mere aggregate of the individuals living under one roof” and that “the ethical and social dimension of a family cannot be ignored or underestimated”75. He also questioned the ability of transgendered persons to raise children: “Studies have shown that not all transsexuals have the same aptitude for family life…
as a non-transsexual”76, referring to research done under the auspices of the International Freudian Association77. Moreover, he points out:
The growing number of precarious and unstable family situations is creating new difficulties for children of first and second families, whether legitimate, natural, successive or superimposed, and will in the future call for thoughtful consideration of the identity of the family and the meaning of the family life which Article 8… is intended to protect, taking into account the fact that priority must be given to the interests of the child and its future.
Concurring opinion of judge Pettiti,X, Y and Z v. the United Kingdom
Thus, Judge Pettiti did not refer just to family formation by transgender persons, but to a more general concern over the acceptability of various forms of family life in Member States and the challenges they posed to a rather uniform and frozen view of family life, a nuclear family based on a relationship of heterosexual couple of cisgender (the opposite of ‘transgender’) persons.
However, nothing in the case material had given an indication that the relationship of X and Y was in any way “precarious and unstable”78. Rather, the uncertainties of their family life are created rather by the lack of recognition by UK authorities and outsiders. In his dissenting opinion, Judge Vilhjálmsson submits that “under United Kingdom law it is now possible for the register to contain statements that are not in conformity with biological facts but are based on legal considerations”79 referring to the abovementioned
74 Concurring opinion of judge de Meyer,X, Y and Z v. the United Kingdom.
75 Concurring opinion of judge Pettiti,X, Y and Z v. the United Kingdom.
76 Concurring opinion of judge Pettiti,X, Y and Z v. the United Kingdom.
77 In his concurring opinion, Louis-Edmond Pettiti gives only the following details of the sources he refers to: “voir étude collective d’Alby et autres - Association internationale freudienne - "Identité sexuelle et transsexuels" (“see collective study by Alby and others, International Freudian Association,
‘Sexual identity and transsexuals’”) and a “Que-sais je?” book (a series of short paperback introductions into various topics published in the French-speaking world) by L. Pettiti, called “Les transsexuels” as a source for his argumentation. For theQue-sais je? book, see Pettiti 1992. The study referred to as “Alby and others” might be Alby et al. 1996, see Sources.
78 See previous quote.
79 Dissenting opinion of judge Vilhjálmsson,X, Y and Z v. the United Kingdom.
1990 Act where the male partner (husband or cohabitee) of the woman impregnated by means of assisted reproduction is treated as the father of the child. This statement highlights the role given to legal fictions in creating legal parental ties.
In the decision of C. and L. M. v. United Kingdom from 198980 an Australian woman had filed a complaint with her child against being deported from Britain where the applicant had been residing since 1984. In 1986, she applied to remain in the country in permanent employment as well as for permanent residence due to her relationship to E., a British national resident in the United Kingdom. Her residence application was rejected as lesbian relationships were not recognised in the immigration rules at the time. After having her child by artificial insemination, C. was being supported by E. In her complaint, C. evoked Articles 8, 12 (right to marry and to found a family) and 14, when in most of these cases only Articles 8 and 14 have been evoked. The Commission found that the lesbian relationship in question involved private life under Article 8. However, the State’s rights to impose immigration controls overrode this, as in other kinds of relationships, but the Commission admitted that C. and E. were treated differently compared to if they had been a different-sex couple.
InKerkhoven, Hinke and Hinke v. the Netherlands from 199281 a Dutch lesbian couple sought joint parental authority for a child they had had together by artificial insemination. They requested that they be jointly vested with the parental authority of the child they were raising together. The claim was struck down by three different levels of the Dutch judicial system. Only the biological mother had legal family ties with her son under Dutch law as, at the time: “only a man, whether the biological father of the child or not, can recognise a child.”82 The applicants evoked article 14 in conjunction with article 8 of the Convention. They complained that they were subject to discrimination as they were not able to enjoy their rights under article 8 regarding parental authority on the same footing as heterosexuals, and that their child was being
“discriminated against on the ground of his birth and status in comparison with legitimate children”83. The Commission admitted that the provisions in article 8 are there to protect ‘illegitimate’ as well as ‘legitimate’ families, referring to theMarckx v. Belgium judgement from 1979, and that “there may be positive obligations inherent in an effective ‘respect’ for family life”84. However, the Commission stated that it had previously decided in theSimpson v. United Kingdom that “a stable homosexual relationship between two women does not fall within the scope of the right to respect for family life
80C. and L. M. v. the United Kingdom, no. 14753/89, Commission decision of 9 October 1989.
81Kerkhoven, Hinke and Hinke v. the Netherlands, no. 15666/89, Commission decision of 19 May 1992.
82 Kerkhoven, Hinke and Hinke v. the Netherlands, “The Facts”
83Kerkhoven, Hinke and Hinke v. the Netherlands, “The Law”.
84Kerkhoven, Hinke and Hinke v. the Netherlands, “The Law”.
Filiation: Adoption and Assisted Procreation
ensured by article 8”85. Nevertheless, the Commission did acknowledge that what is at hand is a family-like situation, as it notes that the applicants are free to “live together as a family”86. This kind of a ‘freedom to live together’ has been the argument put forth by Governments and ECHR bodies in many cases involving family situations which have not all been characterised by sexual minority or transgender issues: B., R. and J. v. the Federal Republic of Germany,Kerkhoven, Hinke and Hinke v. the Netherlands,X, Y and Z v. the United Kingdom and most lately,Chavdarov v. Bulgaria.