STRASBOURG, France (CN) — Iceland wasn’t wrong to deny parental rights to a lesbian couple who had a child via surrogacy, Europe’s top rights court held Tuesday.
The European Court of Human Rights found that denying the parental rights of Valdís Fjölnisdóttir and Eydís Agnarsdóttir for a boy born in the United States through a surrogate mother did not violate their right to family life.
“The right to respect for 'family life' does not safeguard the mere desire to found a family; it presupposes the existence of a family, or at the very least the potential relationship,” the Strasbourg-based court wrote. The ECHR was created in 1959 by the European Convention on Human Rights to safeguard the political and civil rights of Europeans.
In 2013, Fjölnisdóttir and Agnarsdóttir traveled to California to pick up a baby boy, identified in court documents as X, who had been born to a surrogate mother. The baby was not biologically related to either woman. The couple traveled to the United States as surrogacy is illegal in Iceland and punished as a criminal offense.
When they returned to Iceland, they attempted to register X as their son and as an Icelandic citizen. The government refused to recognize the boy as an Icelandic citizen as he was born to an American woman, and took him into custody as an unaccompanied minor. As a compromise, authorities then placed X in foster care with Fjölnisdóttir and Agnarsdóttir.
The couple applied to adopt X but while the process was ongoing, they divorced and had to withdraw their applications. The pair subsequently each remarried and settled into a joint custody arrangement of X, who was ultimately granted Icelandic citizenship via another legal avenue.
Iceland, however, still refused to recognize Fjölnisdóttir and Agnarsdóttir as X’s parents When they exhausted their legal options in Iceland, they filed a complaint with the ECHR.
As X has remained with both Fjölnisdóttir and Agnarsdóttir during his entire childhood and will continue to do so, the court found their rights had not been violated.
“The court notes that the three applicants’ actual enjoyment of their family life was not interrupted by an intervention by the respondent state,” the seven-judge panel wrote.
A woman, only identified as M in court records, was appointed by the Icelandic government as X’s legal guardian and remains so.
Europe remains divided on the issue of surrogacy. Some countries, like Italy and Germany, explicitly forbid the practice. In other countries, including The Netherlands and Belgium, surrogacy contracts are unenforceable, meaning the adoptive parents have no legal rights if the biological mother changes her mind. Other countries like Ukraine allow the practice, and foreigners often hire Ukrainian women to serve as their surrogates.
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