The Child’s Rights to Identity & the European Court of Human Rights

Award-winning fertility lawyer and Page Provan director, Stephen Page discusses the recent decision of the European Court of  Human Rights.

Transcript

G’day, Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking today about a recent decision of the European Court of Human Rights.

If you live anywhere in Europe, then it’s quite surprising when you think about the war in Ukraine, then you’re subject to the European Convention on Human Rights, and this was created by the Council of Europe back in the ’50s, when Churchill and others wanted to make sure that there couldn’t be a repeat of World War II, that human rights were upheld.

So, those who feel as though their rights have been impeded, their human rights have been impeded under the European Convention of Human Rights, can end up in the European Court of Human Rights, which is based in Strasbourg, in France, but on the border with Germany, and these two people, a man and a woman, were born in France.

They were born through donation. I can’t remember whether it was sperm donation or egg donation, but the point is it was a gamete donation of some kind. At the time in France, it had to be anonymous. Now, that’s not the rule in France now.

In 2022, as the judge can explain, they have a similar system in France to what we have in Australia, namely open identity donation, namely the child can find out where they’ve come from. But back in the 1980s, when these two were born, that wasn’t the state of the law at all.

It was secret squirrel business, you don’t have a right to find out where you’ve come from. Now there are some exceptions to that, about finding out medical records.

So you have some medical history, but not actually who the donor was, and this man and woman came to the European Court of Human Rights and said, It’s our human right under the relevant article of the European Convention to know our genetic origins.

Sadly, the European Court of Human Rights has said otherwise. It said, well, actually, it’s not. That the law in France at the time said you’re not entitled to know.

It’s anonymous donor, and the judgement noted that the law in France has varied since then, as I said, in 2022 and the court also noted that there was an exception, which was to find out medical origin.

So surprisingly, in light of current trends, the European Court of Human Rights has held that there is not, in Europe at least, under that article of that convention, a human right to find out where you came from.