STRASBOURG, France (CN) — A woman forced to give her daughter the father’s last name, despite the man demanding she terminate the pregnancy, has won a discrimination case before Europe’s top rights court.
The European Court of Human Rights concluded that the Spanish tradition of bestowing a child first with the father’s surname followed by the mother’s surname violates the prohibition of discrimination in the European Convention on Human Rights.
Josefa León Madrid became pregnant after a brief relationship with the baby’s father, identified in court documents as J.S.T.S. He wanted her to terminate the pregnancy but León Madrid refused, instead cutting off all contact with him.
Following his daughter’s birth in 2006, J.S.T.S. changed his mind and brought a lawsuit to be legally recognized as the father. The baby was initially given her mother’s two surnames, but the judge in the paternity case ordered that she be given her father’s surname as well as her mother’s.
Under a 1958 law, Spaniards are given first their father’s paternal surname followed by their mother’s paternal surname. Until 1999, it was impossible to list the mother’s name first, even if the parents agreed.
León Madrid complained to the Spanish authorities that this practice was unfair. She wanted her daughter to have her surname first, followed by the father’s. After exhausting her legal options, she filed a complaint with the Strasbourg-based Court of Human Rights.
Spanish authorities argued that the policy isn’t discriminatory and León Madrid's daughter, now 16, could change her name when she turned 18. The seven-judge panel disagreed, finding that two identical persons - two parents - were being treated differently under the law on the basis of their gender.
"While placing the paternal surname first could serve the purpose of legal certainty, the same purpose could be served by having the maternal surname in that position. The reasons given by the government had not therefore been sufficiently objective and reasonable in order to justify the difference in treatment imposed on the applicant,” the rights court said in a news release on its decision. The ruling is only available in French.
Spain was ordered to pay León Madrid 33,000 euros ($38,000) in damages and expenses.
The 1953 convention that created the human rights court protects the civil and political rights of Europeans and forbids unequal treatment based on “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The law requiring the father’s surname to appear first was changed in 2017 and now parents are allowed to decide on the order of the surnames. If the parents can’t agree, the child will be given the names in alphabetical order.
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