Controversial debates on the drafting of the “Recommendation on the Rights and Legal Status of Children and Parental Responsibilities”.
(Source: Gregor Puppinck, PhD, Director of the ECLJ, European Center for Law and Justice)
Between the 12th and the 14th of October 2011, the European Committee on Legal Co-operation (CDCJ) of the Council of Europe discussed a Draft Recommendation by the Committee of Ministers on the Rights and Legal Status of Children and Parental Responsibilities (see below the link to the document).. The first draft recommendation was drawn up by the Committee of Experts on Family Law (CJ-FA), and was adopted on the 27th May 2011, under the supervision of British scholar Nigel Lowe. The text, as amended by the European Committee on Legal Co-operation (CDCJ), will be submitted, probably in the second half of November, to the Committee of Ministers for its further consideration and discussion, potentially on some new amendments, followed by its definitive adoption. At the CDCJ, a strong debate has divided States regarding the natural and moral foundations of the family.
The recommendation aims to define a number of new common principles “updating” European Family Law to the social and scientific changes that have occurred in the past decades in parts of Europe in relation to family and procreation. The recommendation especially focuses on the establishment of affiliation in the context of unmarried couples and medically assisted procreation, for both different and same-sex couples.
It puts the natural model of family and the new relationships resulting from same-sex unions and artificial procreation on an equal footing. As its explanatory memorandum concerning parenthood says, the aim of the recommendation is to “provide a balance” between “the biological truth” and “social or psychological parenthood.” Lastly, it presupposes the social and moral acceptability of same-sex unions, and of all medically assisted procreation techniques, including surrogate motherhood, ignoring the very fact that most of those practices and situations are illegal and contrary to the public order in the majority of the member states. As such, the recommendation ultimately sends the message that the Council of Europe recommends the legalisation of those practices and obliges the member states to recognise them in their territory when they concern foreign citizens.
Most of the debate, during the discussion of the Draft Recommendation, focused on its core proposals, specifically principles 11, 12, and 17. Principles 11 and 12 proposed establishing a paternal affiliation for registered partnerships and co-habiting different-sex couples, applying the paternal presumption in the case of marriage. Principle 17 § 1, subsections b) and c), proposed establishing a paternal affiliation for a man who is the registered partner or the co-habiting partner of a woman whose child was conceived as a result of medically assisted procreation. Principle 17 § 3 proposed establishing a maternal affiliation for a woman who is the spouse, registered partner, or the co-habiting partner of a mother whose child was conceived as a result of medically assisted procreation. This principle intended to establish a principle of automatic “parental affiliation”, without any assessment by the national authorities as to the suitability of the registered or co-habiting same-sex partner of the mother of the child, as is the case in establishing the affiliation as a result of adoption.
Being a non-binding instrument, the purpose of this Draft Recommendation is to create soft-law and to highlight an “emerging consensus” within all the Member States on these matters, including their moral acceptability.
Because the European Court of Human Rights (ECtHR) has not yet established principles on the matter, it is likely that this soft-law will progressively become “hard-law” through the case-law of the Court. These jurisprudential principles are applicable to all Member States. Often, the ECtHR has created or declared new obligations for Member States, transforming soft-law into case-law. This occurred, for example, in the cases Emonet and others v. Switzerland (concerning adoption by the co-habiting partner of the mother) and Shalk and Kopf v. Austria (concerning access to marriage for a same-sex couple).
At least four applications pending before the ECtHR
Currently, there are at least four applications related to issues at stake in the Draft Recommendation pending before the ECtHR. For the Court, the issues in each case are issues of first impression, issues with which the Court has not previously addressed. While deciding on the merits of these pending cases, the Court will take into account the Draft Recommendation; thus, providing the opportunity to start transforming the soft-law into case-law.
Here are the cases that the Court will have to consider in the near future:
- X. and others v. Austria, (n° 19010/07), challenges the impossibility of the same-sex partner of the mother of a child to adopt the child, in accordance with national law;
- Valérie GAS et Nathalie DUBOIS v. France, (n° 25951/07), challenges the impossibility of the same-sex partner of the mother of a child conceived by medically assisted procreation to adopt the child, in accordance with national law;
- Francine BONNAUD et Patricia LECOQ v. France, (n° 6190/11), challenges the impossibility of the same-sex partner of the mother of a child to share parental responsibilities for their child, which has been conceived by medically assisted procreation, in accordance with national law;
- Stéphane CHAPIN et Bertrand CHARPENTIER v. France, (n° 40183/07), challenges the impossibility of free access to marriage for same-sex couples in accordance with national law.
Some other applications concerning artificial procreation are also pending, including the case Costa and Pavan v. Italy (no 54270/10) and S. H. v Austria (no 57813/00).
The timing of those cases in relation to the adoption of the Recommendation is also strategic. For instance, when the Court considered the case Shalk and Kopf v. Austria, the hearing occurred immediately after the adoption of the recommendation on LGBT rights. Similarly, the X. and others v. Austria case will be discussed by the Court on December 1st, only a few days after the expected date of the definitive adoption of the recommendation by the Committee of Ministers..
The discussion of the Draft Recommendation
Between the 12th and the 14th of October 2011, the CDCJ discussed the draft “Recommendation on the Rights and Legal Status of Children and Parental Responsibilities” elaborated by the CJ-FA. The CDCJ is composed of a greater number of States than the CJ-FA and includes the participation of representatives of the Observer States at the Council of Europe (such as Canada, the Holy See, Japan, Mexico, and the United States of America), and other participants (such as the Steering Committee of the Council of Europe on Bioethics, the ECtHR, and some interested NGOs).
The Holy-See and the Russian Federation made proposals to modify the most controversial provisions of the document, including Principles 11, 12, and 17. A number of States, including Armenia, Azerbaijan, Malta, Moldova, Poland, Russia, Serbia, and Ukraine explicitly supported these suggested modifications; other Eastern European Member States, however, did not take a position. Still some Western States, lead by the Netherlands and Austria (and including Belgium, Germany, UK, Portugal, Greece, Norway, and Finland), were against the modification of the provisions and argued in favor of maintaining the original text. Several NGOs played an important role in persevering the natural and traditional, in particular 80 Russian and 10 Ukrainian NGOs adopted a resolution that requested the Council of Europe respect the natural and traditional family.
The most significant change that resulted from these discussions was the withdrawal of Principle 17 § 3, which established a maternal affiliation for a woman who is the spouse, registered partner, or a co-habiting partner of a mother whose child was conceived as a result of medically assisted procreation. Some reference to the discussion surrounding this change has been inserted into the provision in the Explanatory Memorandum. The legal impact of Principles 11 and 12 concerning the presumption of paternal affiliation to co-habiting couples and registered partnerships of different-sex couples has also been limited.
The main arguments
The main arguments supporting the amendment of the original draft were the lack of consensus among the 47 Member States on those issues which are illegal in the majority of Member States. It has been highlighted that only a minority of Member States provide for “registered partnership” status, and that fewer States confer an equal status to marriage and to registered partnership or co-habitation of the same-sex couples, as well as recognizing the establishment of parental affiliation and of parental rights in those cases. Significantly, some states highlighted that a child has a right not to be voluntarily deprived of his father. Therefore no State shall legalize situations aimed at creating a child without a father. During these debates, the presentation of the Court’s case-law was also rectified. The case-law recalled that according to the Convention, there is no right to have a child as well as access to medically assisted procreation techniques. Nor is there a right to have an equal legal recognition of the registered partnership or co-habiting partnership of same-sex couples (as in the case of the marriage of different-sex couples). On the contrary, the ECtHR case-law establishes that there is no obligation on a State to grant same-sex couples access to a marriage, civil partnership, or to parental rights. A State is free not to legalize or recognize those claims. Furthermore, to protect the family based on marriage, the Court has recognized it is reasonable for a State to establish a different legal status for a registered partnership as opposed to a marriage. Regarding medically assisted procreation, the Court mentioned that this matter raises issues of a “morally and ethically delicate nature”, that “there is no uniform European approach in this field”, and “that the decision as to the principles and policies to be applied in this sensitive field must primarily be for each State to determine.”
To reflect the above-mentioned position of the Court, the Holy See proposed the introduction of a new paragraph in the Preamble of the Draft Recommendation stating clearly that “Member States are free not to legalize, recognize or give effect to status accepted by another State, as well as to reserve access to establishment of parental affiliation and medically-assisted procreation techniques to different sex married couples or to different sex couples whose relationship revealed a certain degree of stability, according to the principle of the best interest of the child..” The proposal faced strong opposition from some Western European delegations and could not be adopted.
In contrast, States wishing to keep the original text principally argued that there is a necessity to create a text “for the future”, and not to halt the “evolution” of families and legislation.. Some of these States argued, but without a clear explanation, that the controversial provisions of the recommendation were necessary from the point of view of the child.
Finally, the European Committee on Legal Co-operation adopted the amended Draft Recommendation, twenty-three voted in favor (Austria, Croatia, Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Ireland, Latvia, Lichtenstein, Macedonia (FYRM), Moldova, the Netherlands, Norway, Portugal, Romania, Russian Federation, Slovenia, Slovakia, Spain, Switzerland), two voted against (Italy and Sweden), and eight abstained (Azerbaijan, Belgium, Hungary, Monaco, Poland, Turkey, Ukraine and UK). After the vote, Norway, Sweden, and the Netherlands made observations declaring that they opposed the deletion of Principle 17 § 3.
At the opposite, States like Malta and Poland asserted that the draft needs to be subject to further consultation by competent national authorities. Nevertheless, Poland has underlined “that the draft Recommendation still deals with some sensitive and controversial issues that require further reflection”
In fact, the Draft Recommendation remains unsatisfactory for most countries, as there is no consensus on the issues at hand. As currently drafted, the Recommendation ignores important issues, including the preservation of the rights of the parents regarding their children. The very notions of family, parents, and children are not defined satisfactorily. The final version should also reassert that States are free not to legalize same-sex unions and artificial procreation. The discussion will now continue; Committee of Ministers will have to make a political decision, preferably before the ECtHR decides on the pending cases.
Members of the Parliamentarian Assemble of the Council of Europe, including Mr Luca Volontè, President of the EPP Group, have expressed their concern and signaled that this Draft Recommendation is contrary to Article15 of the Statute of the Council of Europe, as there is no common ground for a common policy on this matter.
The text, as amended by the European Committee on Legal Co-operation (CDCJ), will be submitted, probably in the second half of November, to the Committee of Ministers for its further consideration and discussion, potentially on some new amendments, followed by its definitive adoption. At the CDCJ, a strong debate has divided States regarding the natural and moral foundations of the family. States wishing to preserve the family’s moral and natural foundations have succeeded in countering the extreme positions expressed in the first draft, as was initially expressed by the Committee of Experts on Family Law. Discussions on the issue will now resume within the Committee of Ministers (i.e., at the political level of the ambassadors).
The aim and the proposals of the Draft Recommendation
- Meeting Report of the 86th Plenary meeting of the European Committee on Legal Co‑Operation (CDCJ), Strasbourg, 12-14 October 2011 - CDCJ (2011) 15 VERSION FRANCAISE (the Draft recommendation and its draft explanatory memorandum can be found in this Report)
ECHR case law:
- Written question n° 607 to the Committee of Ministers presented by Mr Volontè on the the draft recommendation on the rights and legal status of children and parental responsibilities
- Civil Socielty Resolution Approved at the Public Hearing On October 4th, 2011 Saint-Petersburg, Russian Federation.
* * *
 The ECtHR has decided only two cases on the matter: Evans v. United Kingdom, n° 6339/05, GC judgment of 10 April 2007, related to the withdrawal of consent by the applicant’s partner to use or preserve the embryos created by medically-assisted procreation, after the couple had separated; Dickson v. United Kingdom, n°44362/04, GC judgment of 4 December 2007, related to the authorization of a prisoner to have access to medically assisted procreation, as those techniques were permitted to others in the UK.
 Emonet and others v. Switzerland, n° 39051/03, judgment of 13 December 2007. “It is true that Article 10 § 2 of the European Convention on the Adoption of Children clearly states that all rights and obligations of the father or mother towards their child cease to exist when the child is adopted. However, even on the highly unlikely assumption that that Convention does apply to the present case, the Court notes that only 18 Council of Europe member States have ratified it and three signed it (situation on 1 July 2007). Furthermore, the draft revised Convention stipulates that the law may provide for the spouse or registered partner of the adopter to retain his or her rights and obligations in respect of the adopted child if the latter is his or her child (Article 11 § 2 of the draft revised convention, see “Relevant domestic and international law”, paragraph 25 above). The Court sees this as a sign of growing recognition in the Council of Europe's Member States for adoptions such as that at the origin of this case.” Id. § 84.
 Shalk and Kopf v. Austria, n°. 30141/04, June 24, 2010: “The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (see Courten, cited above; see also M.W. v. the United Kingdom (dec.), no. 11313/02, 23 June 2009, both relating to the introduction of the Civil Partnership Act in the United Kingdom).” Id. § 105.
 Resolution Approved at the Public Hearing On October 4th, 2011 Saint-Petersburg, Russian Federation. http://blog.profamilia.ru/wp-content/uploads/2011/10/Resolution-on-CJ-FA-GT3-2010-English-Final.pdf.
 Principle 17 Medically-assisted procreation
1. States permitting medically assisted procreation procedures should provide for appropriate rules for establishing parental affiliation. These rules should, in particular, ensure that those concerned are adequately informed and that the procedures are carried out only with their informed consent. States may provide
(in particular ) that:
a. gamete or embryo donors are not considered as the legal parents;
b. a man who is the spouse or (where permitted by national law) registered partner of a woman whose child was conceived as a result of such a procedure is considered as the legal father, unless it is established that he did not consent to the procedure;
c. a man who is the co-habiting partner of a woman whose child was conceived as a result of such a procedure is considered as the legal father provided both he and the woman give written consent before or at the time of the procedure.
2. States where posthumous conception or embryo transfer is allowed should provide that such conception or transfer may only be carried out with the express consent of the persons concerned. In such cases the man or woman concerned should be considered to be the legal parent although states may provide for appropriate limitations of rights of succession.
DELETED : [3. Where states also permit same-sex marriages or same-sex registered partnerships, they may provide that:
a. a woman who is the spouse or (where permitted by national law) registered partner of the mother whose child was conceived as a result of such a procedure is considered to be a legal parent, unless it is established that she did not consent to the procedure;
b. a woman who is the co-habiting partner of the mother whose child was conceived as a result of such a procedure is considered to be a legal parent provided both she and the mother give written consent, before or at the time of the procedure.]
 Principle 11 Application of presumption of paternal affiliation to registered partnerships of different sex couples
Without prejudice of the legal position in other states, States permitting different sex couples to enter into registered partnerships are free to apply mutatis mutandis the presumptions contained in Principles 9 and 10 to the mother’s registered partner.
Principle 12 Application of presumption of paternal affiliation to cohabiting different sex couples
States are free to apply mutatis mutandis the presumptions mentioned in Principles 9 and 10 to the mother’s cohabiting partner. This is without prejudice to the legal position in states not choosing to apply them. From 47 member States of the Council of Europe, only seven States recognize same-sex marriages: Belgium, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden. Only fifteen States recognize same-sex registered partnerships: Andorra, Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Hungary, Ireland, Luxembourg, Netherlands, Slovenia, Switzerland, and UK. Only twelve States recognize the same-sex cohabitation: Austria, Croatia, Czech Republic, Denmark, France, Germany, Ireland, Netherlands, Norway, Portugal, Sweden, and UK. Only twelve States allow same-sex second parent adoption: Belgium, Denmark, Finland, Germany, Iceland, Netherlands, Norway, Slovenia, Spain, Sweden, and UK. Only eight States allow same-sex joint adoption: Belgium, Denmark, Iceland, Netherlands, Norway, Spain, Sweden, and UK. Only nine States allow same-sex couples fertility treatment: Belgium, Denmark, Finland, Iceland, Netherlands, Norway, Spain, Sweden, and UK.
 The Court stated in Sijakova v. The Former Yugoslav Republic of Macedonia, n° 67914/01, decision of 6 March 2003, that neither the right to marry and to found a family, nor the right to private and family life or any other right guaranteed by the Convention imply a right to procreation.
 Manec v. France, n° 66686/09, decision of 21 September 2010, Shalk and Kopf v. Austria, n° 30141/04, judgment of 24 June 2010.
 Shalk and Kopf v. Austria § 63.
 Manec v. France, n° 66686/09, decision of 21 September 2010; Shalk and Kopf v. Austria, n° 30141/04, judgment of 24 June 2010.
 Manec v. France, n° 66686/09, decision of 21 September 2010.
 Evans v. United Kingdom, n° 6339/05, GC judgment of 10 April 2007, §§ 78, 79, 85 and 90; Dickson v. United Kingdom, n°44362/04, GC judgment of 4 December 2007, §§ 77 and 78.
 Norway has voted in favour of the recommendation as a whole. However, it “regrets the weakening of the draft recommendation on points that are intended to set standards, in the best interest of the child, restricted to those countries that permit same sex marriage or same sex partnerships, in particular Principle 17, paragraph 3, concerning maternal affiliation” with the woman who is the spouse or cohabiting partner of the woman who gave birth through artificial procreation. Netherlands supports the statement of the Norwegian delegation. Sweden is the most extreme State, explaining in its declaration that it “cannot accept the deletion of the Principle 17, paragraph 3”. “For Sweden, it is evident that the recommendation states which rights should apply also to children in member states that offers medically-assisted procreation to same sex couples. We cannot support that the recommendation does not cover the issue of which rights these children have.”
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