Recent judgements contrary to the child’s right to identity

In a series of recent judgements at the European Court of Human Rights (ECtHR), there has been a degressive trend from international norms, guaranteeing the child’s right to identity in family relations (Art. 8(1) CRC). In the decision Gauvin-Fournis and Silliau c. France, (Application 21424/16 and 45728/17), the ECtHR by a small majority refused the applicant’s request for information about their donors. Despite the magnitude of persons affected by this type of conception, facing a lifetime of incomplete identities, the applicants request to be heard by the Grand Chamber was refused on the 19/2/2024. In the case of Cherrier v France (Application 18843/20) the ECtHR again refused to align the French laws with the UNCRC related to their identity on 30/01/24. The ECtHR found that it was within France’s margin of appreciation to not provide information about a birth mother to an adoptee, born through naissance sous X.

These decisions present a worrying direction contrary to the State’s obligation to preserve and speedily re-establish missing elements of the child’s identity. To the contrary, the ECtHR, continues to implicitly support anonymous practices without any real opportunity for reparations for children and persons who find themselves in these situations. It is not clear how such decisions can ever be aligned with the CRC Committee’s 2023 recommendation to France that they “ensure that children born through assisted reproduction technologies have access to information about their origins before they reach the age of 18, whenever they make a request to that effect” and previous recommendations to remove the condition of the mother’s consent before the child can know their origins. There is hope in the minority decisions in both cases, which pave the way for the enjoyment the right to identity.

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