Team number: 044
THE EUROPEAN HUMAN RIGHTS
MOOT COURT COMPETITION
2015
State of the Utopin Republic
(Respondent)
Vs.
B.N.
(Applicant)
Submission for the Respondent
1
Table of Contents
SUMMARY OF THE RESULTS
3
LIST OF REFERENCES
4
LIST OF ABBREVIATIONS
8
1.ADMISSIBLITY
9
1.1 No exhaustion of domestic remedies by the Applicant
1.2 The Applicant’s victim status
9
10
2.MERITS
11
2.1 Part Ι-The lack of legal bond
12
2.1.1 Marriage as a form of legal bond
12
2.1.2Civil Act and other types of legal commitment as forms of legal bond
12
2.2 Part II-Proceedings to maternity
2.2.1 Biological bond between K.N. and the twins define maternity
14
14
2.2.2 Wide margin of the states about IVF does not constitute a violation of article 8 of
ECHR
2.2.3 No simulation with the institution of the surrogacy motherhood
2.3 Part ΙΙΙ- Proceedings to guardianship
2.3.1 K.N.’s parents’ legal guardianship over her includes the custody of the twins
15
15
16
16
2.3.2 The best interest of the children outweighs the Applicant’s right to private and family life
of article 8 of ECHR
3.Conclusion
17
20
2
SUMMARY OF THE RESULTS
■ These Observations are submitted on behalf of the Respondent in reply to the application
made by B.N in August 2014.
■ The Respondent does not really contest the basic facts of the case, and especially the fact
that K.N. would have been the mother of the twins, if she had not been involved in the accident.
The Applicant's allegation differs from the Respondent's one, only in its interpretation. The
Respondent refers to the Statement of Facts prepared by the Court and reserves the right to
elucidate contested factual issues in the Second Part of the present document that is in
connection with the alleged violations.
■ Concerning the admissibility, the Applicant has not exhausted all domestic remedies
regarding to the violation of article 8 and 8 under conjunction with 14 of the ECHR. Although
she addressed to all domestic courts, she did not present the arguments that justify the violation
of the aforementioned articles. Furthermore, the Applicant is not the legal guardian of K.N. and
as a result she cannot launch an application on her behalf. Accordingly, the application should
be declared inadmissible and rejected under article 35(1) and (4). Provided that the Court does
not agree with these preliminary objections, the Government submits the following observations
on the merits of the case.
■ As far as the guardianship of the twins is concerned, the Respondent claims that this
subject should be based on the lack of legal bond between the Applicant and K.N., the fact that
K.N. is the mother of the twins and the best interest of the children. These are the factors which
define the right of maternity of K.N. and guardianship over the children by K.N.’s parents. This
judgment constitutes interference in the Applicant’s private life. However, it falls under the
scope of article 8 § 2, according to which the intervention aims to guarantee the protection of the
morals, the public safety and the freedoms of the other people involved in the recent case.
Regarding article 14, the Respondent stresses that the Applicant is not a victim of
discrimination, since her rights were defined by the above-mentioned criteria and not by her
sexual orientation.
3
LIST OF REFERENCES
Primary Sources
Conventions and treaties
■
The United Nations Convention on the Rights of the Child (20 Nov 1989)
■
Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe
(4 Nov 1950)
■
Vienna Convention on the law of treaties (23 May 1969), United Nations
■
Convention for the Protection of Human Rights and Dignity of the Human Being with regard to
the Application of Biology and Medicine: Convention on Human Rights and Biomedicine,
Council of Europe
■
The UN Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), (18 Dec.1979)
■
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, Council of Europe
■
European Convention on the Adoption of Children (27 Nov 2008), Council of Europe
Case law of the European Court of Human Rights
■
Ahmet Sadik v. Greece, no.18877/91 (15 Nov.1996)
■
Anayo v. Germany, no.20578/07 (21 Mar. 2011)
■
Arskaya v. Ukraine, no. 45076/05 (05 Mar. 2014)
■
Azinas v. Cyprus, no. 56679/00 [GC] (28 Apr. 2004)
■
Berisha v. Switzerland, no.948/12 (20 Jan. 2014)
■
Bronda V Italy, no.22430/93 (9 June 1998)
■
Castells v. Spain, no. 11798/85 (23 Apr. 1992)
■
Csáky v. Hungary, no. 32768/03 (28 June 2006)
■
Demopoulos and Others v. Turkey, nos . 46113/99, 3843/02,13751/02, 13466/03, 10200/04,
14163/04, 19993/04, 21819/04 [GC](1 Mar. 2010)
■
Diamante and Pelliccioni v. San Marino, no. 32250/08 (08 Mar. 2012)
4
■
Dickson v. the United Kingdom, no. 44362/04 [GC]( 4 Dec. 2007)
■
E.B v. France,[GC], no. 43546/02 (22 Jan. 2008)
■
Elli Poluhas Dödsbo v. Sweden, no. 61564/00 (03 Jul. 2006)
■
Elsholz v. Germany, no. 25735/94 (13 July 2000)
■
Fressoz and Roire v. France, no. 29183/95 (21 Jan. 1999)
■
Frétte v. France,, no. 36515/97 ( 26 Feb. 2002)
■
Gäfgen v. Germany,[GC], no. 22978/05 (26 May 2002)
■
Gas and Dubois v. France ,no. 25951/07 (15 June 2012)
■
Görgülü v. Germany, no. 74969/01 (26 May 2004)
■
Hämäläinen v. Finland, no. 37359/09 [GC] (16 July 2014)
■
Hokkanen v. Finland, no. 19823/92 (23 Sept. 1994)
■
Johansen v. Norway, no.17383/90 (7 Aug. 1996)
■
Johnston and Others v. Ireland, no.9697/82 (18 Dec. 1986)
■
K. and T. v. Finland, no.25702/94 [GC](12 July 2001)
■
Karapanagiotou and Others v. Greece, no.1571/08 (28 Jan. 2011)
■
Keegan v. Ireland, no.16969/90 (26 May 1994)
■
Keenan v. The United Kingdom, no.27229/95 (3 Apr. 2001)
■
Knecht v. Romania, no.10048/10 (11 Feb.2013)
■
Kutzner v. Germany, no. 46544/99 (26 Feb. 2002)
■
Labassee v. France, no. 65941/11 (26 Sep. 2014)
■
Marckx v. Belgium, no.6833/74 (13 June 1979)
■
Maršálek v. the Czech Republic, no.8153/04 (4 Apr. 2006)
■
Mata Estevez v. Portugal, no.56501/00 (10 May 2001)
■
Mazurek v. France, no. 34406/97 (1 May 2000)
■
Mennesson v. France, no. 65192/11 (26 Sep.2014)
■
Mifsud v. France, no. 57220/00 [GC] (11 Sept. 2002)
■
Mikulić v. Croatia, no. 53176/99 (4 Sep.2002)
■
Mugenzi v. France, no. 52701/09 (10 Sep. 2014)
■
Musci v. Italy, no. 64699/01[GC] (29 Mar. 2006)
■
Neulinger and Shuruk v. Austria, no.41615/07 [GC] (6 July 2010)
■
P., C. and S. v. The United Kingdom ,no. 56547/00 (16 Oct.2002)
5
■
Paul and Audrey Edwards v. the United Kingdom, no.46477/99 (14 June 2002)
■
Peter v. Germany, no.68919/10 ( 4 Sep. 2014)
■
Pini and Others v. Romania, nos.78028/01 and 78030/01 (22 Sep.2004)
■
R. and H. v. the United Kingdom, no.35348/06 (31 May 2011)
■
Rees v. the United Kingdom, nο. 9532/81 (17 Oct. 1986)
■
Sahin v. Germany, no. 30943/96 (8 July 2013)
■
Salgueiro da Silva Mouta v. Portugal, no.33290/96 (21 Mar. 2000)
■
Salman v. Turkey, no.21986/93, [GC] (27 June 2000)
■
Schwizgebel v. Switzerland, no.25762/07 (10 Sep. 2010 )
■
Şerife Yiğit v. Turkey ,no. 3976/05 [GC] (2 Nov. 2010)
■
S.H and Others v. Austria, no. 57813/00 [GC] (3 Nov. 2011)
■
Tanda-Muzinga v. France, no. 2260/10 (10 Οct. 2014)
■
Senigo Longue and Others v. France, no. 19113/09 (10 Oct. 2014)
■
The estate of Kresten Filtenborg Mortensen v Denmark, no. 1338/03 (15 May 2014)
■
Ünal Tekeli v. Turkey, no. 29865/96 (16 Feb. 2005)
■
Volk v. Slovenia, no. 62120/09 (13 Mar. 2013)
■
Willis v. the United Kingdom, no. 36042/97 (11 Sep. 2002)
■
X and Others v. Austria, no. 19010/07 [GC]( 19 Feb. 2013)
■
X, Y and Z v. the United Kingdom, no. 21830/93 [GC](22 Apr. 1997)
■
Y.C. v. The United Kingdom, no. 4547/10 (24 Sep. 2012)
■
Zarb Adami v. Malta, no. 17209/02 (20 Sep. 2006)
Secondary Sources
Soft law
■
Universal Declaration of Human Rights (10 Dec.1948)
■
Report on Human Artificial Procreation,1989
■
Explanatory report of Protocol No. 7 to the Convention for the Protection of Human
Rights and Fundamental Freedoms (1 Nov. 1998)
■
Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe on
“International adoption: respecting children’s rights” ( 26 Jan. 2000)
6
■
Geneva Declaration of the Rights of the Child (26 Sep. 1924)
■
Declaration on Social and Legal Principles relating to the Protection and Welfare of Children,
with special reference to Foster Placement and Adoption Nationally and Internationally (3
December 1986)
Literature
Articles
Doswald-Beck L., « The Meaning of the Right to “ Respect for Private Life” under the
■
European Convention on Human Rights», HRLJ, 1983, 4, p. 283-309
■
Emberland M., « The Human Rights of Companies : exploring the structure of ECHR
protection » , Oxford : OUP, 2006
■
Feldman D. , « The Developing Scope of Article 8 of the European Convention on Human
Rights », EHRLR, 1997, 2, p.265-274
■
Forder C. , « Legal Protection under Article 8 ECHR : Marckx and Beyond », NILR, 1990,37,
2, p.162-181
■
Kay R. «The European Convention on Human Rights and the Control of Private Law »,
EHRLR, 2005,10, p.466-479
■
Rietiker D. , « Un enlèvement d’enfant devant la Grande Chambre de la Cour européenne des
droits de l’homme: l’affaire Neulinger et Shuruk c. Suisse analysée à la lumière des méthodes
d’interprétation des traités internationaux », RTDH, 2012,90
■
Boucaud P. , « Le Droit aux contacts familiaux sous le prisme des articles 6 et 8 de la
Convention européenne des droits de l’ homme » , RTDH, 2007, 70
■
Larralde J. , « L’ article 8 de la Convention europeenne des droits de l’ homme et la protection
de l’ identité sexuelle » , RTDH, 2006, 65
■
Larralde J., « La cour européenne des droits de l’ homme et le droit a l’ avortement : entre
avancées prudentes et conservatisme assume »,RTDH, 2012,91
■
Thym. D. , « Respect for private and family life under Article 8 ECHR in immigration Cases »,
ICLQ, 2008, 57, 1
7
Books
■
Kilkelly U., « The Right to Respect for Private and Family Life : a guide to the implementation
of Article 8 of the European Convention on Human Rights », Strasbourg: Council of Europe,
2001 , p.66
■
Loveland I., « When is a house not a home under article 8 ECHR » , PubiL, 2002, summer
■
Mowbray A., « The Development of Positive Obligations under the European Convention on
Human Rights by the European Court of Human Rights », Oxford : Hart Publishing, 2004
■
O’ Donnel K. , « Protection of family life: Positive Approaches and the ECHR » , Journal of
Social Welfare and Family Law, 1995, 14, 3, p.261-279
■
Roagna I., « Protecting the Right to Respect for Private and Family Life under the European
Convention on Human Rights » , Strasbourg : Council of Europe, 2012, p.105
■
Robertson A.H., « Privacy and Human Rights : reports and communications presenting at the
Third international colloquy about the European convention on human rights, organized by the
Belgian universities and the Council of Europe, with the support of the Belgian Government
Brussels , 30 September- 3 October 1970, Manchester » Manchester University Press , 1973
■
Sicilianοs L.A- Gavouneli M.( eds.), « Scientific and Technological Developments and Human
Rights » , Athens, Ant. N. Sakkoulas, 2001, p.161-281
■
Ryssdal R., « The Expanding Role of the European Court of Human Rights in Essays in
Honour to T. Opsahl»
■
Van Dijk P. και G.J.H. van Hoof, « Theory and Practice of the European convention on
Human Rights », Kluwer law, International
■
Harris D. / O’Boyle M. / Warbrick C., « Law of the European Convention on Human Rights »,
2, Oxford : Oxford University Press, 2009
LIST OF ABBREVIATIONS
IVF
Art./s.
CoE
ECHR
GC
p.
In Vitro Fertilisation
Article/s
Council of Europe
European Convention on Human Rights and Fundamental Freedoms
Grand Chamber judgment
page(s)
8
1.ADMISSIBLITY
1.1 No exhaustion of domestic remedies by the Applicant
1.
The Respondent underlines that the Applicant has not exhausted all domestic remedies,
in the meaning of article 351. The Court recently reiterated that the rule of exhaustion of domestic
remedies is an indispensable part of the functioning of the protection system under the Convention and
that this is a basic principle2 . Although the Applicant addressed to all levels of national jurisdiction, her
claims were not as definite and concrete as required. It is not necessary for the Convention rights to be
explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance 3.
This means that if the Applicant has not relied on the provisions of the Convention, she must have
raised arguments to the same or like effect on the basis of domestic law, in order to have given the
national courts the opportunity to redress the alleged breach in the first place4 .
2.
The Applicant, therefore, according to the Court’s rules, should have analysed her
arguments more precisely, referring to the articles of ECHR that had been violated or to equal
regulations of the national law system. More specifically, she has not presented before the national
courts any arguments about the fact that she should be recognised as the legal guardian of K.N. in an
individual application. This negligence is also highlighted in the First Instance Court’s decision, which
denied to examine this subject. According to the latter, the Applicant’s intention was to claim the
guardianship over the children and not the representation of K.N. in general. Except for her claims
about the principle “mater semper certa est”, in order to establish her maternity, she has not mentioned
the fact that she has created a de facto family with K.N., or that she serves the children’s best interest
about their guardianship5,6. Additionally, as far as the question of guardianship of the children is
considered, the change of the situation, concerning the medical diagnosis about the irreversible situation
of K.N, demands re-examination n by the national courts.
1
See also, the decision about admissibility, The estate of Kresten Filtenborg Mortensen v. Denmark,; Musci v. Italy,§ 40;
Mifsud v. France, §15.
2 See also, Demopoulos and Others v. Turkey, §§ 69 and 97
3See also, Castells v. Spain, § 32 ; Ahmet Sadik v. Greece, § 33; Fressoz and Roire v. France, § 38 ; Azinas v. Cyprus,
§§40-41.
4See also, Gäfgen v. Germany, §§142, 144 and 146; Karapanagiotou and Others v. Greece, § 29.
5 See also, European Convention on the Adoption of Children, arts.4 and 14§1.
6 See also, European Convention on the Exercise of Children's Rights, art.1.
9
1.2 The Applicant’s victim status
3.
The Respondent contends that the Applicant cannot fall within the scope of “victim” in the
meaning of Article 34 of the Convention or under the Court’s case-law.
4.
According to domestic law, in case an adult lacks legal capacity, his/her spouse or parents are
responsible to represent him. Moreover, in Strasburg case law, there are many applications which are
declared admissible and are launched by the wife or husband of the victim 7, or by the person who is
committed with the victim with a Civil Act8. In the present case, the Applicant is not the spouse of K.N,
since their marriage is not regulated by the Utopin Republic law or any other legal status (e.g. civil
union). On the contrary, the legal bond between K.N. and her parents is already recognised by the law,
as their biological connection is indisputable.
5.
Referring to the Applicant’s claims about the de facto family that she has created with K.N., the
Respondent underlines that priority should be given to the traditional type of family9 that connects K.N.
with her parents10. More specifically, the bond between an adult and his parents is stronger than a
temporary love relationship .Moreover, the duration of these two types of relationship (parental and
love relationship) differs. The first has lasted from the moment of K.N.’s birth until to date. On the
contrary, the relationship between the Applicant and K.N. has lasted only for some years. The fact that
there was a distance between K.N.'s parents and their daughter does not guarantee that their relationship
would have been destroyed for good and that they would cease to love and care about their child and act
for her benefit. Consequently, K.N.'s parents are considered to be the next of kin, not only due the legal
bond that relates them, but also due to their emotional connection.
6.
The Respondent argues that the Court is adopting the same position as in the decision “ Mata
Estevez v. Spain”, in which it was stated that long-term homosexual relationships between two men do
not fall within the scope of the right to respect for family life protected by Article 8 of the Convention.
In the present case, the Applicant has not established a family bond with K.N., as the Government will
explain in the analysis of the merits of the case.
7
See also, Elli Poluhas Dödsbo v. Sweden § 8; Salman v. Turkey, §6.
See also, Peter v. Germany, §§ 7 and 51.
9
See also, Universal Declaration of Human Rights, art. 16§3.
10
See also, Paul and Audrey Edwards v. the United Kingdom, §3; Keenan v. The United Kingdom, § 2; Volk v. Slovenia, §3;
Arskaya v. Ukraine, § 3; Csáky v. Hungary, § 2; Mazurek v. France, §8.
8
10
7.
Supposing that the Court finds that K.N.'s parents do not express their daughter's wishes,
because they oppose to them, The Respondent supports that according to domestic law, the legal
guardian is not obliged to act following the ward's wishes. As a result, the Respondent prefers not to
extend to the analysis of the fact that she expresses K.N.’s wishes.
8.
Accordingly, the application should be declared inadmissible and be rejected as void, under art.
35 par. 1 and 4.
2.MERITS
9.
The Government claims that in the recent case there are conflicting interests between on the one
hand the individual rights of the Applicant and on the other hand both the social interest and the interest
of the children. Supposing that Your Court concludes that the Applicant’s right to private and family
life is breached (article 8 par.1), the Respondent declares that any intervention is justified by the article
8 par.2,, according to which the public interest, morals and children’s best interests outweigh the ones
of the Applicant. As to the latter’s claims about being a victim of discrimination, the Respondent
stresses that they do not fall within the scope of article 14, since her sexual orientation has not affected
the domestic courts’ decisions.
10.
Moreover, the Court should not deprive the states of the right to define the relationships between
their citizens.
11.
The Respondent will now respond to the Applicant's claims about violation of articles 8 and 8
and in conjunction with 14 of ECHR.
12.
The Applicant’s claims about the guardianship over the children are based on two different
grounds; firstly, the existence of legal bond between the Applicant and K.N. and secondly, the question
of motherhood. The Respondent will prove in the proceedings that K.N. is not related in a legal
framework with the Applicant and that K.N. is the mother of the twins and these two factors will affect
the Court’s assessment about the guardianship over the children, which should be granted to K.N.’s
parents.
11
2.1 Part Ι-Lack of legal bond
2.1.1 Marriage as a form of legal bond
13.
As far as their marriage is considered, the fact is that it is not recognised in Utopin Republic's
law system. Although there is a tendency in Europe to legalise same sex marriages, as the Applicant
claims, it is undoubtedly a matter of high importance and for this reason the Court should not base its
decision on this tendency, but should give priority to each state’s legal system ,which is the most
suitable to define the needs and the potentials of each society. As the article 12 of ECHR confirms , the
states have a wide margin
11
of regulation of same sex marriage. As to the interpretation of this article,
the Court in case ‘’Schalk and Kopf v.Austria’ held that, the text should be interpreted so as not to
exclude the marriage between two men or two women" (para. 55). This interpretation by the Court
confirms that there is no obligation of the states to legalise same sex marriage, but it functions only
optionally.
12
In our case, Utopin Republic has chosen not to establish this legal bond between
homosexual people and this attitude does not constitute a violation of article 8 of the ECHR. The
Respondent deeply respects their rights to express their orientation, but the Court should not ignore the
states' right to define the legal status of these relationships, in order to guarantee their morals, and the
social structure of their societies (article 8 §2).
2.1.2 Civil Act and other types of legal commitment as forms of legal bond
14.
Replying to the Applicant's claims about the lack of possibility to legalise their relationship by
contracting a Civil Act in Utopin Republic, the Respondent declares that there is no such obligation.
The Applicant’s claim could be considered as valid, if Utopin Republic had already provided different
sex couples with this opportunity. Since the Civil Act is not regulated at all, the article 14 about
discrimination is not applicable .Comparing the situation of different sex couples to the same sex
couples; Utopin Republic does not provide Civil Act for neither of them. Consequently, there is no
discrimination based on sexual orientation as Civil Act is concerned. As a result, the Government
11
See also, Willis v. the United Kingdom, §48 ; Frétte v. France ,§41 ; Keegan v.Ireland, §49 ; X,Y and Z v.the United
Kingdom , §44.
12See also, Hämäläinen v.Finland , §108 ; Gas and Dubois v.France, §60.
12
stresses that since there is no discrimination, it is not neccessary to proceed to the examination of a
legitimate aim for the different treatement. For these reasons, the Applicant's claims based on case
''Vallianatos v. Greece'' are not applicable in our case, since according to the Greek legal system, Civil
Act was provided only for different sex couples. This difference in treatment between couples of
different and same sex, constitute a dicrimination based on sex and sexual orientation, which is not
legitimate. More specifically, not every difference in treatment will amount to a violation of Article 14.
It must be established that other people in an analogous or relevantly similar situation enjoy preferential
treatment and that this distinction is discriminatory 13.On the contrary, in Utopin Republic , Civil Act is
not regulated for heterosexual sex couples either and for this reason the differentiation derives from the
legal status between married and cohabiting couples and is consequently justified.
15.
Finally, a legal bond between the Applicant and K.N. does not exist, as they are not either
married or civil partners14 and no special regime for homosexual people is imposed to the states to
regulate15. Additionally, the domestic legislation of Utopin Republic does not oppose to the Vienna
Convention on the Law of Treaties.16As to the Applicant’s claims that she and K.N. constitute a de facto
family, the Respondent will present its arguments in combination with the question of guardianship of
the twins in the following paragraphs. Consequently, the fact that Utopin Republic does not provide
homosexual people with any legal form of commitment does not constitute a violation either of article 8
or of article 14.
13
See also, Zarb Adami v.Malta, §71; Ünal Tekeli v.Turkey, §49.
See also, Şerife Yiğit v. Turkey,§§ 3 and 99.
15
See also, Johnston and Others v.Ireland, §68.
16
See, art. 27.
14
13
2.2 Part II-Proceedings related to maternity
The Government notes that the second factor, on which the Court’s assessment about
16.
guardianship of the children should be based, is maternity. Your Court is required to follow the
Supreme courts' decision, which recognised K.N. as the mother of the twins.
2.2.1 Biological bond between K.N. and the twins define maternity
17.
Firstly, according to medical aspect, the Respondent states that K.N. is the biological mother of
the twins, since they share the same genetic material. The twins were brought to life through the IVF
procedure, by K.N.’s ova and a donor’s sperm. The Applicant contributed in the procedure, only by
offering her body as an environment for K.N.’s eggs to be developed and shaped. As a consequence,
there is a strong biological bond between K.N. and the twins, which outweighs the sole procedure of
giving birth. Taking into consideration the Preamble of the ECHR, according to which the Convention
is a living instrument, the latter should be interpreted in the light of modern methods of
biomedicine.17As far as principle 14 par,1 of the Report on Human Artificial Procreation is concerned,
the Court should take into account that this report was issued in 1989 and the evolution of Biomedicine
has developed. Therefore, your Court should distinguish this case from “Marckx v. Belgium”, where the
principle ''mater semper certa est'' (the mother is always the woman who gives birth to a child) was
established. The significant difference between the latter case and the recent one is based on the
grounds that the Applicant's childbirth was natural, while in our case, the applied method was IVF.
Furthermore, Ms Marckx ' child came both from her ova and her body, while the Applicant offered only
her body to give birth to the twins. For these reasons, it is required that Your Court should acknowledge
that the twins come from the genetic material of K.N., which renders her the mother of the twins. In
conclusion, the Respondent states that the twins are undoubtedly connected to K.N.' s DNA, as long as
the Applicant has no biological bond with the children. According to European case law, the Court is
not obliged to recognise as a mother a woman who is not biologically the mother of the child18.
17
18
See also, Rees v. the United Kingdom,§ 47 ; S.H and Others v. Austria,§118 ; Johnston v. Ireland,§53.
See also, X, Y and Z v. the United Kingdom, §§44, 52.
14
2.2.2 Wide margin of the states about IVF does not constitute a violation of article 8 of ECHR
18.
As far as the IVF procedure is concerned, which was the method chosen by the couple, the
Government claims that it is a special matter, which is regulated according to each state’s domestic
legal framework. Due to its specialty, the states have a wide margin of appreciation in order to regulate
these situtations19. This statement is obvious in the Court’s assessment in case law of ECHR.
Responding to the Applicant’s reference to S.H. and Others v. Austria, the Court should take into
consideration the major difference to the present case. In S.H and Others v. Austria the applicants were
heterosexual couples, who could not bear a child due to medical problems and chose IVF as a means of
remedy. On the contrary, in the recent case the question is not the treatment of K.N.’s infertility, but a
method the couple used in order to overcome the natural way of reproduction. Nature’s rules about the
perpetuation of mankind demand heterosexual couples and IVF is a method to cure a natural
malfunction20. In the present case, IVF aims to convert the naturally impossible (reproduction by two
people of the same sex) into possible. Consequently, the difference between these two cases is more
than important and this is the reason why the regulation of IVF between homosexual people should be
left to the state’s authority.
2.2.3 No simulation with the institution of the surrogacy motherhood
19.
This contribution of the Applicant in IVF procedure is recognised by the Government as
substantial, but cannot constitute the motherhood itself. More specifically, K.N. is biologically
connected with the twins and the Applicant is an intermediate person, thanks to whom this procedure
was completed. BN’s biological status is possible to be simulated to this of a surrogate mother, who
offers only her body to host the sperm and give birth21. Although she fulfills the biological conditions of
the surrogate mother, she should not be faced as one, since the latter undertakes the pregnancy and the
childbirth in favour of a mother with fertility problems. In the present case, the Applicant is not
participating in the procedure to replace K.N. due to fertility problems and for this reason, the
Applicant’s legal status as a surrogate mother cannot be applied proportionally. Furthermore, the
institution of surrogate mother is not adopted by the domestic law, as it is confirmed by the European
19
See also, Dickson v. the United Kingdom,§§41,44 ; Knecht v. Romania,§§ 58,59.
See also, Report on Human Artificial Procreation, principle 1§1.
21
See also, Report on Human Artificial Procreation of CoE, Scopes and Definitions, statement (e).
20
15
case law, which recognises the wide margin of the states to integrate this institution22. Finally, the court
should take into consideration the fact that this case law of ECHR includes cases of heterosexual
couples. This fact is strengthened by the Report on Human Artificial Procreation on Chapter II, which
establishes surrogacy motherhood only for heterosexual couples. The other legal condition for
surrogacy motherhood is the contract between the couple and the surrogate mother. As a result, these
are differences of a high importance, which function for the recent case as obstacles in the proportional
treatment of the Applicant’s situation to a surrogate mother’s one.
2.3 Part ΙΙΙ-Proceedings to guardianship
20.
The Respondent deeply respects the rights of homosexual people, thus it can be confirmed by
the Supreme Court's decision that entitled B.N. to be the temporary guardian of the twins. For this
reason, it is obvious that the Government does not act with homophobic motives or discrimination
intentions, as the UN Convention of Elimination of All Forms of Discrimination against women
stresses23. On the contrary, there are specific reasons, which justify the guardianship by K.N.'s parents.
21.
In respond to the Applicant's claims about the guardianship of the twins, it is obvious that due to
the medical diagnosis of K.N.'s irreversible situation, this decision should be re-examined by the Court.
2.3.1 K.N.’s parents’ legal guardianship over her includes the custody of the twins
22.
The Government insists that K.N.’s parents should undertake the guardianship of the children,
since they are the legal guardians of K.N., due to the fact that they are the next of kin, as the
Government analysed in the part of admissibility. Since K.N. is the mother of the twins, it is her
parents’ responsibility to raise their grandchildren. On the contrary, according to the aforementioned
about the lack of legal bond between the Applicant and K.N., the Court should bear in mind that there is
not a legal justification about the upbringing of the children by the Applicant. Moreover, in most of the
22
23
See also, Mennesson v. France, § 63; Labassee v.France,§55.
See arts. 5a, b and 16 d, f.
16
Conventions and Reports of CoE there is a reference to marriage of the parents, in order to regulate
issues about their children’s best interest24.
23.
Provided that the Court does not accept the arguments about K.N.’s motherhood, the
Government stresses that the Applicant is unfit to undertake the custody of the children 25. Firstly, the
Applicant’s arbitrary and illegal attitude, by ignoring the injunctions about the eggs and inseminating
them in her body, proves that she acts in a disrespectful manner and despises the juridical enforceability
of court judgments. This fact indicates that it is questionable if she is able to transplant to the children
the ideals of respect and responsibility in critical matters26. Secondly, the Applicant’s financial status is
not adequate to provide the twins with a stable and secure environment27, since K.N.’s income belongs
to her legal guardians, which are, as stated above, her parents. Moreover, the perspectives of moving to
Foretia, where she comes from, do not seem to be positive either in a financial or an emotional aspect
28
. The Applicant lacks, also, her family’s support, which is one more disappointing factor for
the best interest of the children.
2.3.2 The best interest of the children outweighs the Applicant’s right to private and family life of
article 8 of ECHR
24.
Furthermore, in respond to BN's claims about the interest of the twins, the fact that they stayed
with BN until the judicial judgment should not define their future. Specifically, the Respondent claims
that the Court should consider as a decisive criterion the best interest of the children, in order to choose
which family is best to undertake the guardianship over them29 30. According to article 3 of the United
24
See also, Explanatory Report of Protocol 7 of ECHR, art. 5§§34,37,38,39.
See also, Maršálek v. the Czech Republic,§ 71 ; Neulinger and Shuruk v. Austria,§§ 135,136; R. and H. v. the United
Kingdom ,§§75,81.
26
See also, Declaration on Social and Legal Principles relating to the Protection and Welfare of the Children with Special
Reference to Foster Placement and Adoption Nationally and Internationally, art. 9.
27
See also, Y.C v. the United Kingdom, §§134,135. See also, Geneva Declaration on the rights of the child.
28
See also, Geneva Declaration on the rights of the child.
29
See also, Frétte v.France, §§40,42, Schwizgebel v. Switzerland, §95 ; Berisha v. Switzerland, §51 ; Mugenzi v. France, § ;
Tanda-Muzinga v.France, Senigo Longue and Others v.France, ;Meneson and Others v. France, §84 ; Labassee v. France ,
; Diamante and Pelliccioni v.San Marino,§§183,184 ; Y.C. v.the United Kingdom, §135 ; Görgülü v.Turkey,§43 ; P,C and S
v. the United Kingdom, §117.
25
30
See also, the Universal Declaration of Human Rights, art. 25.
17
Nations Convention on the Rights of the Child 1989
31
; ”In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration”32. In carrying out this
balancing exercise, the Court will attach particular importance to the best interests of the child which,
depending on their nature and seriousness, may override those of the parent33. Furthermore, the Court
should bear in mind that the national authorities have the benefit of direct contact with all the persons
concerned, and are for this reason suitable to decide34. According to its statement, the best interest of the
twins is to be raised in a traditional family.35 Despite the Applicant's claims about the obligation of the
Court to interprete the ECHR under the light of modern reality, the Respondent insists on the solid
foundation of the traditional family, where they will experience both role models, the male and the
female one. This kind of family consisting of both sexes is able to offer the twins the opportunity to
shape a balanced character and affect their personal relationships in the future in order to create their
own family as adults. This opinion about the necessity of the dual figures is also supported by the
judges Türmen, Ugrekhelidze and Jočienė in the dissenting opinion in E.B v France and by the judges
Casadevall, Ziemele, Kovler, Jočienė, Šikuta, De Gaetano And Sisilianos in X and Others v Austria (§8
of the dissenting opinion), More specifically, in the latter case, the dissenting opinion focuses on the
best interest of the child, which is guaranteed into an environment consisting of both sexes. The
Respondent submits that the Court should follow the same guideline in the present case, by defining as
legal guardians of the twins, their grandparents, who constitute a traditional family and provide them
with both figures36.
25.
In respond to the Applicant’s reference in case law and specifically in case E.B v France, the
decision of the Court was based on the fact that the domestic authorities made a distinction based on
considerations regarding the Applicant’s sexual orientation, a distinction which is not acceptable under
the Convention (par.96).37 Your Court should take into account that in E.B v. France, the decision did
not include a judgment on the interest of the child. Ιt only notified that the decision of the Committee of
31
See also, the UN Convention on the Rights of Child, 1989, arts.2,20,21 and 40.
See also, Explanatory report of Protocol 7 of ECHR, art.5§36.
33
See also, Johansen v. Norway, §64.
34See also, Sahin v. Germany, §64; Hokkanen v. Finland, §55; Kutzner v. Germany,§§65,66; Elsholz v.Germany,§49 ;
Keegan v. Ireland, §49 ; Pini and Others v. Romania,§149 ; K. and T. v. Finland, §154.
35
See also, Anayo v. Germany,§65.
36
See also, Bronda v.Italy,§51.
37
See also, Salgueiro da Silva Mouta v. Portugal, §36.
32
18
Adoption in France was bases on the Applicant’s sexual orientation, which constituted a discrimination
of article 8 in conjunction with article 14.
The Applicant’s claims about K.N.’s parents’ behaviour before the birth of the twins do not
26.
render them unsuitable to undertake the custody of the children. More specifically, their wish to destroy
the eggs, during the temporary pause of IVF, was conducted by their opinion that in case they were not
provided the guardianship over the twins, the Applicant would be unsuitable to raise them effectively38.
This attitude on behalf of the parents does not guarantee that they do not show the demanding love and
care for them39. Moreover, their intervention is justified by the fact that according to the Report on
Human Artificial Procreation of CoE , principle 7 par. 2 and 4, K.N.’s vegetative status is simulated to a
deceased one’s (since her state is irreversible) and as a result the IVF should not be completed. Besides,
K.N.’s attitude before the insemination does not guarantee that she would complete the procedure. The
latter could withdraw her consensus about IVF in case the accident did not occur40. On the contrary,
their constant participation in legal battles indicates their will to look after and embrace them.
38
See also, Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe on "International
adoption: respecting children’s rights’’.
39
See also, Declaration of the Rights of Child, principle 6.
40See
also, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine: Convention on Human Rights and Biomedicine, art.5.
19
3. Conclusion
27.
On the basis of the aforementioned and provided that the Government’s preliminary objections
are not accepted, it is submitted that the application, in its entirety, is manifestly ill-founded within the
meaning of Art.35, par.3 and 4 of ECHR.
28.
Provided that the Court considers the application admissible, in the recent case there is no
violation of articles 8 and 8 in conjunction with 14 of ECHR.
29.
The Respondent contends that the amounts claimed by the applicants are excessive and that the
applicant has not proved that she has suffered personal and direct interference with her private and
family life a violation would constitute in itself sufficient just satisfaction.
20