The judgement of Marckx v. Belgium from 1979 may, in this study, be described as the “mother of all key cases”. It concerned a case where Paula Marckx, a single woman, gave birth to a child and challenged the need to establish her legal relation to the child through recognising and adopting her, which was the practice in Belgium still in the 1970s11. However, when the mother recognised and adopted her own child, this affected the child’s inheritance rights, and even after becoming legally affiliated to her mother, the child remained a stranger to her mother’s family members, and could not inherit them if they had not made a will in her favour. This also meant that if the mother died, her relatives could not become guardians of the child.
Michael Goldhaber, an American legal journalist who has written a popularised account of the main import of the European Court of Human Rights to human rights protection in Europe, offers a colourful account of the story behind theMarckx case. Paula Marckx, it appears, never was a shrinking violet: she has established herself as a household name in Belgium by working as a model, writing a novel, working as a journalist interviewing big names from Franco to Shirley MacLane, and she was the first female pilot working at Antwerp airport12. (Goldhaber 2007.) Goldhaber reports that Paula Marckx first wrote to Strasbourg in her own name, but received a reply saying that she had no standing in the case as her rights as a mother had not been violated
11 In the eyes of the Napoleonic code and legal systems modelled upon it such as in Belgium,
‘illegitimate’ children had the status of a foundling, regardless of the physical relationship to the mother. See Lasok (1996).
12 For more biographical details, see Paula Marckx’s biography, published in English in 2010 (Marckx 2010).
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(2007: 17). She rewrote the complaint in the name of her child, and leaked the letter to a fellow journalist. The letter made headlines: “Je suis un bébé et je porte plainte…” (”I am a baby and I make a case...”). In September 1974, the complaint was deemed admissible. Leonora Van Look, a family law research assistant at the Catholic University of Louvain and an acquaintance of an acquaintance of Paula Marckx, began to help her with the legal paperwork and soon became her legal representative. In July 1976 they went to Strasbourg to be heard at the European Commission of Human Rights, at the time the first instance of the ECHR machinery. This was Van Look’s first court case, and this was the first time a female lawyer presented a case in the system of the European Court. According to Goldhaber, who interviewed Paula and Alexandra Marckx and Van Look, there was widespread support for the Marckx case from people involved in the process and from the media as well as individual decision-makers, such as Leona Detiege, a single mother and an alderman who later became Antwerp’s mayor. (Goldhaber 2007: 18-9.)
When looking at the documents available from the European Court, the Marckx saga is revealed in a more legal and technical manner, but this does not make the narrative any less fascinating. Paula Marckx began her legal process by lodging a complaint against the Belgian state in March 1974 on behalf of herself and her daughter who she had given birth to in October 1973.
She reported the birth to her local registration officer, as was required at the time by the Belgian Civil Code concerning children born to unmarried women.
Soon after reporting the birth, Marckx was summoned by a District Judge in Antwerp to appear in court to be informed about the “methods available for recognising her daughter”13. Three days later she recognised her child as stipulated by the Belgian Civil Code. A year later, in October 1974 she adopted her daughter as required by Belgian law. Certain kinds of enquiries had to be made within the procedure and some expenses were incurred in the process, which was concluded almost six months later in April 1975, when a judgement confirming the adoption was delivered. However, the decision was retroactive so Marckx was the guardian of her daughter from the date of adoption.
In the admissibility decision for the case from 1975 (a document preceding the judgement which declares the case worthy of legal proceedings in the European Court), the Belgian government argued in favour of maintaining a close link between family and legitimate marriage: “[T]he main aim [was] to protect legitimate families and encourage marriage. It would be illogical to attempt to encourage marriage and at the same time put children born out of wedlock on exactly the same footing as legitimate children”14. Due to this, the procedure for creating a recognised family relation between the unmarried mother and her child was quite detailed:
13Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, paragraph 9.
14Marckx v. Belgium, 6833/74, Commission decision of 29 September 1975 on the admissibility of the application, p. 127-128.
The applicant acknowledges that under Belgian law there is one way of increasing an illegitimate child's rights, namely adoption. She states that she has just adopted her daughter, for which she had to apply to a notary and spend 4,500 Belgian francs (roughly 550 French francs) to set proceedings in motion, although many unmarried mothers are in financial straits. The police then made enquiries of her neighbours;
enquiries of this nature might damage the prospects of improving an illegitimate child's legal status by adoption, for instance as a result of the neighbours' prejudices against unmarried mothers. Moreover, she had to go to a police station to fill in a questionnaire which included the question ”Why do you want to adopt the child?”. The police also inspected her flat and investigated her financial situation. The applicant considers that such an investigation might perhaps be justified in the case of a person wishing to adopt someone else’s child but that it is scarcely appropriate that it should be made by the police.
Marckx v. Belgium, Commission decision, p. 129
The quote above illustrates that the process of adoption between an unmarried mother and her child was by no means a simple formality: the amount of work required by both the mother and the authorities in the process indicates that the aim of the legislation was indeed to discourage births outside marriage and to regulate the conduct of unmarried women if they happened to give birth to children out of wedlock. In short, if an unmarried woman gave birth to a child, her fitness to be a legal parent had to be evaluated. The Commission report on the case15 sheds even more light on the details of the case. The police asked her neighbours’ opinion on her “maternal qualities”; she was summoned to the police station and asked questions on her private life, such as her motives to adopt the child, and the police visited her home to obtain information on her accommodation and income.16
Marckx and her daughter argued their case in Strasbourg by claiming that Belgian legislation concerning children born out of wedlock “violated the family life of the child because it hinders the establishment of legal relations between the mother and the natural child”17. Further, they argued that legislation that aims to protect family life must promote the establishment of legal relation based on blood, because “… this solution corresponds to the truth. Indeed, maternity, be it legitimate or natural, is a fact subject to direct
15Marckx v. Belgium, no. 6833/74, report of the Commission.
16 ”Sa vie privée a été l’objet de plusieurs enquêtes: la police a interrogé ses voisins pour demander leur opinion sur les “qualités maternelles” de la requérante; elle a été convoquée au commissariat de police pour être interrogée sur sa vie privée, entre autre sur ses motifs d’adopter son propre enfant; la police a effectué une visite à domicile pour demander des renseignements sur ses conditions de logement et ses revenus.”Marckx, report of the Commission, para 50.
17 ”… la législation belge porte atteinte à la vie familiale de l’enfant puisqu’elle entrave l’établissement de liens juridiques entre la mère et l’enfant naturel”.Marckx, report of the Commission, para 22.
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proof”18. The Belgian Government argued that leaving the mother free to decide whether or not to recognise her child was favourable to the child being adopted by prospective adoptive parents. In opposition to this, the applicants argued that the birth mother could not really remain anonymous as according to Belgian law the name of the mother must be mentioned on the birth certificate19. The Government also argued in formalised ECHR language that maintaining the existing treatment of children born to unmarried mothers was necessary in a democratic society, as it had as its aim to promote marriage and the so-called ‘legitimate family’.20
The Government of Belgium admitted that the “legislative dispositions [concerning the establishment of filiation] date from the introduction ofCode Napoléon in 1804 and [had] not been modified since, even though on many other points the legal situation of natural children has been subject to legislative improvements”21. The Government further argued that not all unmarried mothers were as eager as Paula Marckx to take up their role as mothers: “If a mother is not married, it is by no means certain that she will be able to assume, alone and without the support of a man who has committed himself to it, the burdens of maternity”22. Later on, it complemented this by arguing that under article 203 of the Belgian Civil Code, upon marriage spouses enter into a contractual relation to feed, maintain and raise their children23. The Belgian Government made reference to the French practice of anonymous birth, reminding that a woman can conceal her identity when giving birth. In contrast, in Belgian law, “the medical secret has to yield before the legal obligation to record the identity of the mother”24. Thus, it was argued by the Government that this way the liberty of the woman to assume or not to assume her maternity is respected.
In the mindset of the State that had not substantially modified its law on filiation since the dawn of the Napoleonic Code, a birth outside marriage was to be understood as a mishap, accident or the result of irresponsible behaviour.
18Marckx v. Belgium, report of the Commission, para 22.
19Marckx v. Belgium, report of the Commission.
20 ”… cette ingérence est actuellement nécessaire dans une société démocratique à la protection de la morale, de l’ordre et des libertés d’autrui, puisqu’elle aurait pour but de promouvoir le mariage et la famille dite légitime”.Marckx v. Belgium, report of the Commission, para 29.
21 “Ces dispositions législatives datent de l'introduction, en 1804, du Code Napoléon et n'ont jusqu'à présent pas été modifiées, méme si, sur plusieurs autres points, la situation juridique des enfants naturels a fait l'objet d'améliorations législatives”.Marckx v. Belgium, report of the Commission, para 31.
22 ”Si la mère n’est pas mariée il n’est pas du tout certain qu’elle sera disposée à assumer, seule et sans le concours d’un homme qui s’est engagé, les charges de la maternité”.Marckx v. Belgium, report of the Commission, para 33.
23Marckx v. Belgium, report of the Commission, para 41.
24 ”… [le] secret médical doit céder devant l’obligation légale de divulguer l’identié de la mère”, Marckx v. Belgium, report of the Commission, para 33.
An unmarried woman was not seen as a fully competent parental subject and could not be assumed to bear a direct legal relation of responsibility to her child, as without the material and moral support of a husband, she could not be expected to offer a decent future for her child. If she expressed her wish to become the legal parent of her child, she became a full parent.25 However, the child remained a legal stranger to her or his maternal family members:
grandparents, aunts, uncles and so on. In fact, the Government argued that the only difference in treatment between legitimate and adoptive children was that the adopted child did not acquire inheritance rights towards the relatives of the adoptive parents; this was because the relatives might be opposed to the adoption26.
In her complaint to the European Court, Marckx evoked Article 8 (the right to respect for private and family life, the home and correspondence) and 14 (the prohibition of discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status). She evoked Article 14 in conjunction with Article 8 with respect to discrimination
“between ‘legitimate’ and ‘illegitimate’ children and between unmarried and married mothers”27. When the case was heard in the European Court, the representative of the Belgian Government contended that the “issues raised by the applicants [were] essentially theoretical in their case” and that since the adoption of the child born by her mother in October 1974, her “position vis-à-vis her mother has been the same as that of a ‘legitimate’ child”28. The judges of the European Court did not agree with the submission of the Belgian Government. Regarding the merits of the case, the Court held that “Article 8…
makes no distinction between the ‘legitimate’ and the ‘illegitimate’ family”29. Furthermore, the Court noted that a resolution from 1970 of the “Committee of Ministers of the Council of Europe regards the single woman and her child as one form of family no less than others”30.
Thus, the Court referred to a resolution adopted by an intergovernmental body of the Council of Europe, the institution behind the Convention and the Court, in order to justify its view. Actually, Belgium had signed the international Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children prepared by the International Commission on Civil Status which entered into force on 23rd April 1964, but had not ratified it yet at the time when theMarckx case was in the Belgian legal system. The Council of Europe concluded its Convention on the Legal Status
25 ”… la tutelle lui appartient en plein droit”.Marckx v. Belgium, report of the Commission, para 41.
26Marckx v. Belgium (judgement 1979), para 56.
27Marckx v. Belgium, 13 June 1979, Series A no. 31 (judgment), para 22.
28Marckx v. Belgium, judgment, para 26.
29Marckx v. Belgium, judgment, para 31.
30Marckx v. Belgium, judgment, para 31.
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of Children born out of Wedlock on 15th October 1975, and it entered into force on 11th August 1978. However, at the time Belgium had not signed or ratified this treaty. Nevertheless, a Bill was submitted to the Belgian parliament on 15th February 1978 which was to establish the principle ofmater semper certa est in the Belgian Civil Code and place ‘illegitimate’ and ‘legitimate’ children on the same footing in the face of law.
In its decision, the Court held that there had been a breach of Article 8 with respect to both Paula Marckx and her daughter in establishing her daughter’s maternal affiliation and that there had also been a breach of Article 14 taken in conjunction with Article 8 with respect to both applicants. It also held, in addition to a variety of legal considerations raised in the case, that there had also been breaches of Article 14 in conjunction with Article 8 as to the extent in law of the child’s family relationships and the patrimonial rights relied on by both her and her mother. In its decision, the Court relied on the facts of the present case but also on intertextual references made to a resolution by the Council of Ministers. The Marckx case also laid an important precedent regarding unmarried mothers and the legal rights of children born out of wedlock, and thus constitutes a text which is referred to often in the subsequent case law of the European Court.
The case illustrates how the principle ofmater semper certa est is actually no more ‘natural’ or immediate than the legal assumption of paternity, as it is a socio-legal construct in the same way as other legal principles. In this case, the adoption of the child born by her birth mother constituted a legal fiction that turned the biological link between the child and the mother into a legally recognisable relation. TheMarckx case demonstrates the constructedness of legal mother-child relations: the mere fact of birth does not make a mother, but the registration of the birth in her name. Since the judgement ofMarckx v. Belgium in 1979, the marital status of the mother does not affect the certainty of motherhood in ECHR case law, so this judgement gave a final confirmation to the principle ofmater semper certa est in European human rights law. However, some legal scholars seem to disagree, to a certain extent, on whether this principle is in use in France and Belgium. In an introductory article to a volume dedicated to explore the relationship between legal, biological and social relations in determining parentage, the Ingeborg Schwenzer is of the opinion that
Most legal systems still firmly base the law concerning motherhood on the principle ofmater semper certa est, namely that the woman who gives birth to the child is his or her legal mother. France and some legal systems closely affiliated to France, however, do not follow this principle. In these systems, a woman only becomes the legal mother of a child either by designation in the record of birth[reference is made to Belgium], by acknowledging him or her, or by virtue of the so-called possession d’état, or the lived-out mother-child relationship.
Ingeborg Schwenzer (2007: 3-4)
In contrast, in an article in the same volume concerning Belgium, Gerd Verschelden (2007: 64) argues that in Belgium, it is obligatory to mention the name of the mother on the birth certificate in order to establish maternal filiation. This legal obligation was created in 1987 when the Belgian legislator thus accommodated the requirements of the judgement ofMarckx v. Belgium from 1979.
What might explain this divergence in views concerning the applicability of mater semper certa est? As Schwenzer mentions following the passage quoted above, France also recognises anonymous birth, which is another way of weakening the ‘certainty’ of motherhood at birth. However, what seems to be important here is which way the assumption of motherhood goes: if the woman giving birth to the child isassumed to be the mother, the technicalities of birth registration are secondary. What constituted the root of the problem inMarckxwas that due to her marital status, the biological relation of Paula Marckx to her child was unrecognised, despite the labour (pun intended) involved. However, the views of Schwenzer (2007) and Verschelden (2007) show how differently the applicability of the certainty of motherhood can be viewed.