CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 décembre 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sE207830C { margin-top:54pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE3E7C777 { margin-top:0pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; border:0.75pt solid #000000; padding:1pt 4pt } .s13C79B1A { margin-top:0pt; margin-bottom:18pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s760DC008 { font-family:Arial; color:#172535 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9D69DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:11pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s76A8ECA6 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:11.5pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s807BA660 { margin-top:14pt; margin-left:24.16pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.34pt; font-family:Arial; font-weight:bold } .sDD998142 { margin-top:14pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s8B15FBF9 { margin-top:14pt; margin-left:8.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sC36A6361 { font-family:Arial; color:#000000 } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s3D7DAFE3 { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:15.65pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s5749FA4E { width:31.55pt; display:inline-block } .s829C9466 { width:149.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s7C9EDFAD { margin-top:14pt; margin-left:34pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }   SECOND SECTION CASE OF K.K. AND OTHERS v. DENMARK (Application no. 25212/21)     JUDGMENT   Art 8 • No obstacles to enjoying family life by children born abroad via surrogacy and their genetic father’s wife, who was granted joint custody but not adoption • Refusal to allow adoption by wife of children’s genetic father, despite no other possibilities of recognition of a legal parent-child relationship • Private life of the intended mother outweighed by the public interests at stake • Negative impact on the children’s right to respect for their private life due to legal uncertainty regarding their identity within society • Cumulative solutions provided for by Danish law insufficient to make up for the denial of stepchild adoption • Fair balance between competing interests at stake not struck   STRASBOURG 6 December 2022 FINAL   06/03/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of K.K. and Others v. Denmark, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Carlo Ranzoni , President ,   Jon Fridrik Kjølbro,   Egidijus Kūris,   Pauliine Koskelo,   Jovan Ilievski,   Saadet Yüksel,   Diana Sârcu , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   25212/21) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Danish nationals, Ms K.K. and two children, C1 and C2 (“the applicants”), on 11 May 2021; the decision to give notice to the Danish Government (“the Government”) of the application; the decision not to have the applicants’ names disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the NGO, Ordo Iuris, which had been granted leave by the Section Vice ‑ President to intervene as a third party in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court); Having deliberated in private on 8 November 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     Before the Court, th e applicants complained that the authorities’ refusal, upheld by the Supreme Court on 6   November 2020, to let the first applicant adopt the second and third applicants, twins born through surrogacy, amounted to an infringement of their right to respect for private and family life as guaranteed by Article 8 of the Convention. THE FACTS 2.     The first applicant was born in 1967. The second and third applicants are twins, born in 2013. They all live in Copenhagen. They were represented by Ms Maryla Rytter Wroblewski, a lawyer practising in Copenhagen. 3.     The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Ms Nina Holst ‑ Christensen, from the Ministry of Justice. 4.     The facts of the case may be summarised as follows. 5.     In December 2013 a surrogate mother in Ukraine gave birth to the second and third applicants following a surrogacy agreement with the first applicant and her husband, who were the intended parents of the children. 6.     The husband was the biological father of the children. The Ukrainian authorities issued birth certificates for the children, naming the first applicant as their mother and her husband as their father. 7.     The children were brought to Denmark in February 2014. 8.     In Denmark, under section 30 of the Children Act, the woman giving birth to a child is the legal parent of the child (also where the egg from which the child was developed was donated to the mother). Accordingly, the surrogacy agreement stating that the first applicant was to be named as the mother of the two children on the birth certificates had no legal effect in Denmark. However, the children obtained Danish nationality because of their family ties to their father. In addition, on 22 March 2018, the authorities approved the first applicant and her husband being given joint custody of the children. 9.     In the meantime, the first applicant applied for adoption of the children as a step-parent (stepchild adoption). 10.     By a decision of 26 February 2014, the State Administration ( Statsforvaltningen ) refused the application for adoption, as the first applicant and the children had only lived together in Denmark for sixteen days. 11.     On 26 July 2016 the National Social Appeals Board ( Ankestyrelsen ) affirmed the decision of 26 February 2014, stating that adoption would be contrary to section 15 of the Adoption Act, since the surrogate mother had been paid to consent to adoption. On 20 February 2017 the National Social Appeals Board confirmed its decision. 12.     The first applicant brought the case before the courts, which by judgments of, respectively, 6 June 2018 (the District Court of Lyngby ( Retten i Lyngby )) and 14 June 2019 (the Eastern High Court ( Østre Landsret )) upheld the decision to refuse adoption. 13.     With permission from the Appeals Permission Board ( Procesbevillingsnævnet ), the judgment of 14 June 2019 was brought before the Supreme Court, which in a judgment of 16 November 2020 found against the applicants. 14.     From the outset, the Supreme Court found it established that a payment of 32,265 euros by the first applicant and her husband to a clinic in Ukraine had included remuneration to the surrogate mother for giving birth to the children, and for her consenting to the first applicant and her husband being the legal parents of the children, including adopting the children. Thus, the Supreme Court found the adoption to be contrary to section 15 of the Adoption Act. 15.     The Supreme Court also considered whether the refusal was contrary to Article 8 of the Convention. Referring to, inter alia , Mennesson v.   France (no.   65192/11, ECHR 2014 (extracts)) and Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother ([GC], request no. P16-2018-001, French Court of Cassation, 10 April 2019 – “the Advisory opinion ”), the Supreme Court concluded that the Advisory opinion also applied to surrogacy where remuneration had been paid, as mentioned in section 15 of the Adoption Act. In such situations, the best interests of the child should always be taken into consideration. However, section 15 of the Adoption Act contained an absolute ban on granting adoption if anybody having to consent to the adoption had been paid or received remuneration. Against that background, the Supreme Court concluded that the Government needed to reconsider section   15 of the Adoption Act, and that until a change to section 15 had entered into force, the authorities should in all cases involving that section carry out an individual assessment of whether refusing an application for adoption would be contrary to Article 8 of the Convention. More specifically it stated: “The question is then whether the refusal of the application for stepchild adoption conflicts with Article 8 of the European Human Rights Convention. The National Social Appeals Board’s refusal of the application for an adoption to [the first applicant ] must be deemed to be an interference with [the second and third applicant’s] rights under Article 8(1) of the Convention. It follows from Article 8(2) that such interference is not legitimate unless it is in accordance with the law and is necessary in a democratic society in the interests of, inter alia , the protection of the rights and freedoms of others. The European Court of Human Rights has defined, on several occasions, the scope of Article 8 in cases concerning gestational surrogacy, i.e. surrogate motherhood where the child does not develop from the egg of the woman giving birth. As mentioned in the judgment of the High Court, the European Court of Human Rights did so in its judgment of 26 June 2014 in Mennesson v. France (application No. 65192/11) and in its Advisory opinion of 10 April 2019 to the Cour de Cassation in France (No. P16-2018-001). The Advisory opinion concerns a case where a child was born abroad and was conceived using the gametes of the intended father, and where a legal parent-child relationship between the child and the intended father is recognised in the father’s country of origin. According to the conclusion of the Advisory opinion , the child’s right to respect for private life in such cases requires that domestic law provides a possibility of recognition of a legal parent-child relationship with the intended mother, who in a birth certificate legally established abroad is designated as the ‘legal mother’. It further appears from the conclusion that the recognition of the relationship does not necessarily require registration of the foreign birth certificate. Other means might also serve the purpose, including adoption, provided that those means could be implemented promptly and effectively in accordance with the best interests of the child. In its judgment of 16   July 2020 in D v. France (application No. 11288/18), the European Court of Human Rights expressed a similar view in a case where the intended mother was also the child’s genetic mother. The detailed reasons for the conclusion given by the European Court of Human Rights in its the Advisory opinion are provided in paragraphs 39-42 et al. Paragraph 39 thus refers to the Court’s acknowledgement in its judgment of 26 June 2014 ( Mennesson v.   France ) of France’s intention to deter its nationals from going abroad to make use of assisted reproductive methods that were forbidden in France, but that the failure to recognise a legal parent-child relationship did not only affect the intended parents, but, to a very high degree, also the right of the children to respect for their private life. In this context, the Court pointed in paragraph 40 in particular to the risk that the child might be denied access to the intended mother’s nationality or to remain in the mother’s country of origin, and that the child’s right to inherit her estate may be impaired. The Court further pointed out that the child’s relationship with the intended mother may be jeopardised if the intended parents divorce or are legally separated, or the intended father dies, and that the child has no protection should the intended mother cease to take care of it. In addition, paragraph 41 of the Advisory opinion states that the Court was mindful of the fact that, in the context of surrogacy arrangements, the best interests of the child do not merely involve respect for the child’s right to private life, but also other components that do not necessarily weigh in favour of recognition of a legal parent-child relationship between the child and the intended mother. In this context, the Court pointed to the protection against risks of abuse entailed by surrogacy arrangements and refers to paragraph 202 of the judgment of 24 January 2017 in Paradiso and Campanelli v.   Italy (application No. 25358/12) concerning the protection of children against human trafficking, etc. According to paragraph 42 of the Advisory opinion , a general and absolute prohibition against the recognition of a relationship between a child born abroad through a surrogacy arrangement and the intended mother is incompatible with the best interests of the child, which require at a minimum that each situation be examined in the light of the particular circumstances of the case. In the opinion of the Supreme Court, the Advisory opinion must be interpreted to mean that it, among other things, aims at cases of paid surrogacy as mentioned in section   15 of the Adoption Act, and therefore, such situations also require an assessment of the best interests of the child in question based on the particular circumstances of each case. The first sentence of section 15 of the Adoption Act does not allow for such assessment to be made as the provision unconditionally prohibits the grant of an adoption in cases where a person who is to give his or her consent to the adoption has paid or received remuneration, etc. Against this background, the Supreme Court finds that there is a need for the legislative authorities to review section 15 of the Adoption Act. Until such new regulations are available, the European Convention on Human Rights provides that an examination in the light of the particular circumstances of the case as described above is required for the purpose of determining whether a refusal of the application for stepchild adoption would conflict with Article 8 of the Convention.” 16.     In respect of the refusal to grant adoption in the present case, the majority of the Supreme Court (four judges) found against the applicants for the following reasons: “Section 15 is a re-enactment of section 20 of the former Adoption Executive Order from 1986 and builds on the same interests. As to these interests, it is evident from the legislative history of Act No. 326 of 4 June 1986 amending the Adoption Act and the Nationality Act (the Official Report of Danish Parliamentary Proceedings 1985-86, supplement A, Bill No. L 164, column 4164) that whereas one should not prevent surrogacy arrangements not involving payment, agreements on the ‘delivery of a child’ against payment seemed in conflict with the fundamental principles of our society. In this context, it is provided that it should not be possible to buy and sell unborn children, that infertility problems should not become actual ‘trading’ in children and that in connection with agreements involving payment, there is a risk that a woman who chooses to give birth to a child for another may be influenced more by the payment offered than by the best interests of the child when choosing the ‘parents’ of her child. It is also clear from the legislative history that making it punishable to enter into agreements on paid surrogacy had been considered, but that it had been concluded that it was probably rules barring entering into agreements rather than the threat of punishment which would counter such agreements being made. As mentioned, the Advisory opinion must be interpreted to mean that it also aims to deal with cases of paid surrogacy as covered by section 15 of the Adoption Act. It follows from the Advisory opinion , that when determining whether to recognise the legal relationship between a child born through a surrogacy arrangement and the intended mother, for example through adoption, regard should be had to what is best for the child, and that the best interests of that child are paramount. At the same time, however, it should be taken into consideration that the Advisory opinion was given on the basis of a judgment of 26 June 2014 ( Mennesson v. France ), which states in paragraph 8 that the surrogate mother was not remunerated. It must, therefore, give rise to some doubt about how the court finds that the interests of the individual children affected in concrete cases should weigh against the interests underlying section 15 of the Adoption Act. These interests generally aim to discourage commercial surrogacy arrangements and to protect children against being turned into a commodity, including preventing the surrogate mother from caring more about what payment she is offered for the child than about the best interests of the child when selecting ‘parents’ of that child. To this is added the interest in countering the exploitation of vulnerable women in commercial surrogacy arrangements. We acknowledge that [the second and third applicants], who have lived with [the first applicant] all their lives, have a vital interest in her adopting them in order for their identity as her children to be legally recognised. On the other side, there are the interests of general deterrence safeguarded by the prohibition against adoption in section 15 of the Adoption Act. At the same time, we observe that [the first applicant’s] own interests in obtaining recognition of the legal relationship between her and the children through adoption can be given no particular weight as this would be equal to legalising the situation that she has created by making a payment for a consent to adoption contrary to section 15 of the Adoption Act (see also paragraph 215 of the judgment of 24   January 2017 in Paradiso and Campanelli v. Italy ). If the circumstances emphasised by the European Court of Human Rights in paragraph 40 of the Advisory opinion are considered to be being particularly important for the protection of children’s right to respect for their private life, there is, in our opinion, nothing to suggest that it would have a significant impact on the private life of [the second and third applicants] at present if [the first applicant] is not granted an adoption. In this context, it is observed that the children obtained Danish nationality at birth and that they are therefore entitled to reside in Denmark. [The first applicant’s] shared custody further implies that she has a duty to care for the children and that in the event of legal separation or divorce or the death of [the genetic father], she will be able to retain custody under the general rules of the Parental Responsibility Act. Moreover, [the first applicant] will be able to make provision for the children in her will under the rules of the Inheritance Act, and for inheritance tax purposes the children will be in the same position as if they were her children. Based on an overall assessment, we find that the interests of [the second and third applicants] in being adopted by [the first applicant] − weighed against the above-mentioned general interests in protecting children against being turned into a commodity and in preventing the exploitation of vulnerable women − do not imply that the refusal of [the first applicant’s] application for an adoption should, at present, be deemed to constitute a violation of Article 8 of the European Convention on Human Rights.” 17.     The minority of the Supreme Court (three judges) disagreed for the following reasons: “As mentioned above, the European Court of Human Rights concludes in its Advisory opinion of 10 April 2019 that the general and absolute impossibility of obtaining recognition of the relationship between a child born through a surrogacy arrangement entered into abroad and the intended mother is incompatible with the child’s best interests. The best interests of the child require that each situation be examined in the light of the particular circumstances of the case (see in general paragraph 42 of the Advisory opinion ). The balancing of interests and the assessment to be made when determining whether to recognise a legal parent-child relationship between the child and the intended mother (in this case [the first applicant]), for example through adoption, should be based on what is best for the individual child (in this case [the second and third applicants]). According to paragraph 38 of the Advisory opinion , these interests are ‘paramount’, which must be interpreted to mean that very weighty counterarguments are required to reach a different outcome than the one dictated by the best interests of the child. The best interests of the child should be weighed against the interests underlying section 15 of the Adoption Act, including the interests in preventing commercial surrogacy agreements and the implementation of any agreements on commercial surrogacy. In the present case, the children [the second and third applicants] have lived with [the first applicant] and her husband, who is their genetic father, since they were born in December 2013. The children consider them both to be their parents, and in 2018, the State Administration approved [the father and the first applicant] having joint custody of them. We take into account that it would be best for [the second and third applicants] to be adopted by [the first applicant] to the effect that they obtain the same legal relationship with her as they have with [their father]. In doing so, we attach importance to the interests mentioned in paragraph 40 of the Advisory opinion of the European Court of Human Rights, including in particular the legal close relationship with the persons who have responsibility for taking care of them during their upbringing and legal inheritance rights. We find that the interests in preventing the implementation of agreements on commercial surrogacy arrangements are not particularly weighty in the present case where the children have now lived with [the first applicant and the father] for almost seven years, and where [the father] has been recognised for the whole time as the lawful father and holder of custody of the children. The agreement on the surrogacy arrangement has thus been fully performed for his part. In these circumstances, the fact that [the first applicant and the father] once remunerated the Ukrainian surrogate mother cannot, in our opinion, result in the children being barred from obtaining recognition that the person whom they have regarded as their mother for their entire life is also their mother from a legal point of view. Against this background, we find that the children’s right to respect for their private life under Article 8 of the European Convention on Human Rights implies that the relationship between the children and [the first applicant] must be legally recognised, and that for such recognition it does not suffice that she has shared custody.” RELEVANT LEGAL FRAMEWORK AND PRACTICE The Adoption Act 18.     The relevant provisions of the Adoption Act read as follows: Section 2 “ Adoption can be granted only when it can be assumed, on the basis of an examination, that it is in the best interests of the potential adoptee and when it is desired that the potential adoptee should be or has been raised by the adopter, or adoption should be granted for another particular reason.” Section 15 “ Adoption cannot be granted if any of the persons required to consent to the adoption pay or receive remuneration or any other kind of consideration whatsoever, including compensation for loss of earnings. The Family Law Agency (formerly the State Administration) may require from any person having knowledge of the circumstances that he or she provides all information necessary to clarify whether remuneration, and so on, as mentioned in the first sentence has been paid or received ...” Section 33 “(1) No assistance may be provided or received for the purpose of establishing contact between a woman and another person who wants the woman to bear a child for him or her. (2) No advertising is permitted for the purpose of establishing the connection mentioned in subsection (1).” 19.     Section 2 of the Adoption Act is applicable in all decisions on adoption, including stepchild adoption. Applications for stepchild adoption are, according to the information provided by the Government, normally processed within approximately eighteen weeks. Through a stepchild adoption, the legal status of the child is the same as for a child born to a married couple. 20 .     Section 15 of the Adoption Act was given its current wording when Parliament adopted Act No. 233 of 2 April 1997 on the changing of the Adoption Act, the Nationality Act, and the Act on Names (Ratification of the Hague Convention of 29 May 1993 on Protection of Children and Co ‑ Operation in Respect of Intercountry Adoption, Henceforth the Hague Convention, see paragraph 31 below) ( lov nr. 233 af 2. April 1997 om ændring af adoptionsloven, indfødsretsloven og navneloven (Ratifikation af Haagerkonventionen af 29. maj 1993 om beskyttelse af børn og om samarbejde med hensyn til internationale adoptioner ). The purpose of this Act was to enable Denmark to ratify the Hague Convention. However, it applies to all kinds of adoption, both nationally and internationally. Section   33 of the Adoption Act was given its present content when Parliament adopted Act No. 326 of 4 June 1986 amending the Adoption Act and the Nationality Act (Facilitating adoption, etc.) ( lov nr. 326 af 4. juni 1986 om ændring af adoptionsloven og indfødsretsloven (Formidling af adoption m.v. )). The purpose of the Act was, inter alia , to ban the facilitating of surrogacy agreements. According to the travaux préparatoires to the Act, the main concern was the commercial exploitation of surrogate mothers and the risk of children being turned into a commodity. This concern was described as follows: “Agreements on the ‘delivery of a child’ against remuneration seem to conflict with the fundamental principles of our society. It ought to be impossible to buy or sell children, and this also applies to unborn children. Infertility problems should not become actual ‘trading’ in children. To this is added that in connection with agreements involving remuneration, there is a risk that a woman who chooses to give birth to a child for another person may be influenced more by the payment offered than by the best interests of the child when choosing the ‘parents’ of that child.” 21.     Before the bill was adopted by Parliament, the Legal Affairs Committee ( Retsudvalget ) in its report on the bill noted, inter alia , the following: “The Bill clearly prohibits intermediary services and advertising in connection with surrogacy agreements and also prohibits any type of payment to the surrogate mother. The Committee is satisfied with these clear prohibitions and hopes that an unambiguous and tough line will be taken in the administration of the Bill to prevent any attempt to circumvent the rules of law. In response to questions from the Committee, the Minister of Justice has indicated that in the administration of the law, the rules will be strictly applied to seek to bring an end to any type of intermediary services and so on, which operate on the fringes of the law. The Committee concurs with this assessment and places great emphasis on strict adherence to the rules.” 22.     Section 15 of the Adoption Act was given its present content when Parliament adopted Act No. 233 of 2 April 1997 on amending the Adoption Act, the Nationality Act, and the Names Act (Ratification of the Hague Convention of 29 May 1993 on Protection of Children and Co-Operation in Respect of Intercountry Adoption) ( lov nr. 233 af 2. April 1997 om ændring af adoptionsloven, indfødsretsloven og navneloven (Ratifikation af Haagerkonventionen af 29. maj 1993 om beskyttelse af børn og om samarbejde med hensyn til internationale adoptioner ). The purpose of the above-mentioned Act was to enable Denmark to ratify the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (“the Hague Adoption Convention”). In the draft bill, the considerations for section 15 were described as follows: “It is proposed that section 15 of the Adoption Act be amended to ensure that it complies with the prohibition against remuneration in Article 4(c)(3) and (d)(4) of the Hague Convention, whilst at the same time providing for the Convention’s fundamental interest in preventing trafficking in children and unethical procedures.” 23.     The ban in section 15 on adoption if one of the parties has paid or received remuneration is not limited to situations covered by the Hague Adoption Convention. Whereas the Hague Adoption Convention is generally seen as containing basic rules on adoption, section 15 applies to all kinds of adoption, both nationally and internationally. 24 .     Following the judgment by the Supreme Court in the present case, both the Agency on Family Law ( Familieretshuset, which on 1 April 2019 replaced the State Administration in taking decisions on stepchild adoption) and the National Social Appeals Board confirmed that they would apply section   15 of the Adoption Act in accordance with the Supreme Court judgment. Thus, at the present time section 15 is no longer applied as containing an absolute ban on stepchild adoption with regard to children born through a commercial surrogacy agreement. 25.     At the same time, the relevant ministry – the Ministry of Social Affairs and Senior Citizens ( Social- og Ældreministeriet ) – initiated the preparation of legislation aiming to bring the wording of section 15 into line with the Supreme Court judgment. However, those preparations have been put on hold awaiting the outcome of the case at hand before the Court. The Children Act 26.     The relevant provision of the Children Act reads as follows: Section 30 “The woman who gives birth to a child conceived through assisted reproduction [1] is deemed to be the mother of the child.” 27.     Section 30 of the Children Act establishes the fact that the woman giving birth to a child is always deemed to be the mother of the child and as such a legal parent of the child. This also applies to situations where the egg from which the child was developed was donated to the mother. Thus, a woman who donated an egg to the woman giving birth to a child is not deemed the legal mother of the child. 28.     The legal consequences of section 30 are that a surrogate mother, having given birth to the child, is deemed the mother and legal parent of the child even if she, with reference to a surrogacy agreement made under the legislation of the country in which she gave birth to the child, is not deemed the legal mother. Because of section 30, surrogacy agreements are not valid under Danish law, and an intended parent who is not the genetic father is not recognised as a legal parent to the child. Under Danish law, an intended parent may only become a legal parent to the child through (stepchild) adoption, and the surrogate mother may only stop being a legal parent if the child is adopted. 29.     Section 30 establishes the fundamental principle in Danish law on motherhood, and, as it forms part of Danish international private law, it also applies to children born outside of Denmark if the child becomes subject to the jurisdiction of Danish authorities after the birth. Thus, it follows from Danish international private law that parenthood for an intended parent, which is established in another country, is not recognised in Denmark because such recognition is manifestly contrary to the public policy ( ordre public ) of Denmark. The Danish Council of Ethics on the issue of commercial surrogacy 30.     The issue of commercial surrogacy has been considered by the Council of Ethics ( Det Etiske Råd ), which is an independent body, consisting of seventeen members, established in 1987 to advise Parliament, ministers and public authorities on ethical issues in healthcare while respecting the integrity and dignity of humans and future generations. In 2013 the Council of Ethics published a report, “International Trade in Human Eggs, Surrogacy and Organs” ( International handel med menneskelige æg, surrogatmoderskab og organer ). According to the report, all members of the Council found commercial surrogacy ethically problematic because it violated the dignity of the persons involved and contained elements of exploitation. The Council also submitted that surrogacy agreements might change the basic perception of parenthood and human reproduction. A majority of the members of the Council found that surrogacy reduced the female body to a “cocoon for the production of an individual.” The Hague Convention 31 .     The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption contains the following provisions: Article 4 “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin: ... c) have ensured that (1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin, (2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing, (3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and (4) the consent of the mother, where required, has been given only after the birth of the child; and d) have ensured, having regard to the age and degree of maturity of the child, that (1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required, (2) consideration has been given to the child’s wishes and opinions, (3) the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and (4) such consent has not been induced by payment or compensation of any kind.” The United Nations Convention on the Rights of the Child 32 .     The United Nations Convention on the Rights of the Child has general provisions in Articles 3, 8 and 35 on, inter alia , the best interests of the child and measures to prevent the sale and trade in children for any purpose or in any form. In Article 21, the Convention provides as follows on adoption: Article 21 “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: ... (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it.” The European Convention on the Adoption of Children (Revised) 33 .     The European Convention on the Adoption of Children (CETS no.   202), set out, among other things: Article 17 – Prohibition of improper gain “No one shall derive any improper financial or other gain from an activity relating to the adoption of a child.” The Explanatory Report to the said Convention set out (§ 77): “This article stresses that any improper gain arising out of an adoption must be prohibited by law. It prohibits only improper financial or other sorts of gain. All proper gain is therefore not prohibited: the reimbursement of direct and indirect costs and expenses of an adoption and the payment of reasonable remuneration in relation to services rendered are allowed.” Comparative law 34.     The legal situation in forty-three member States for children born through a surrogacy agreement was summarised in the Advisory opinion , §§   22-24, and showed that there was thus no consensus among the Council of Europe member States on the lawfulness of surrogacy arrangements or the legal recognition of the relationship between intended parents and children. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35.     The applicants complained that the Supreme Court’s judgment of 16   November 2020 amounted to an infringement of their right to respect for private and family life as guaranteed by Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 36.     The Government submitted that the case should be declared inadmissible as manifestly ill-founded. 37.     The applicants disagreed. 38.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. B.     Merits The parties’ submissions 39.     The applicants maintained that they had been refused the possibility of being recognised as having a legal parent-child relationship, as required by Article   8, despite them having lived together as a family for more than eight years. They referred, among other things, to the reasoning of the minority of the Supreme Court, in particular that it would be in the interests of the children to be adopted by the first applicant, since they had lived together for so long and they would thereby obtain the same legal relationship with her as they had with their father. It did not suffice for that recognition that she had shared custody. There were no explicit or weighty counterarguments, including the prevention of commercial surrogacy, which could outweigh the interests of the children in the present case. 40.     The Government submitted, inter alia , that the interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society, and that the Supreme Court had carefully considered the case in the light of Article 8, and had struck a fair balance between, on the one hand, the clear and understandable interests of the children in being adopted by the first applicant and, on the other hand, the general interests of children worldwide in being protected from being turned into a commodity and of vulnerable women in being protected from exploitation. Thus, the Supreme Court had succeeded in its difficult and sensitive task of striking a fair balance between the relevant competing interests in a complex case, taking into account the best interests of the child. Moreover, the case concerned difficult ethical and moral issues which the national legislature and courts were best suited to assess. The current state of the law expressed the legislature’s deliberate choice and there was no European consensus. Accordingly, the member States should be granted a wide margin of appreciation. 41.     The third-party intervener Ordo Iuris provided an overview of surrogacy agreements in the light of European and international law, and the practice in other countries. They submitted in particular that if the Convention did not guarantee a “right to surrogacy”, it must be assumed that it did not guarantee “a right to recognise the effects of surrogacy” either. The Court’s assessment 42.     It is not in dispute between the parties that the refusal to let the first applicant adopt the second and third applicants amounted to an interference in the applicants’ right to respect for family and private life, that the interference was prescribed by law, namely section 15 of the Adoption Act, and that it pursued the legitimate aim of protecting the rights and freedom of others. The Court sees no reason to hold otherwise. 43.     In determining whether the interference in question was “necessary in a democratic society”, the Court will consider whether in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, §   177, 24   January 2017, and the sources cited therein). 44.     In cases arising from individual applications, the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it. Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating the complex and sensitive matter of the relationship between intended parents and a child born abroad as a result of commercial surrogacy arrangements (see, for example, Valdís Fjölnisdóttir and Others v. Iceland , no. 71552/17, § 67, 18 May 2021). 45.     The States must in principle be afforded a wide margin of appreciation regarding matters which raise delicate moral and ethical questions on which there is no consensus at European level (see, inter alia , Mennesson v.   France , no.   65192/11, §§ 78-79, ECHR 2014 (extracts); Valdís Fjölnisdóttir and Others , cited above, § 70; and A.M. v. Norway , no. 30254/18, §   131, 24   March   2022). 46.     In addition, the quality of the parliamentary and judicial review of the necessity of a general measure, such as in the present case the ban on adoption if the persons required to consent to it were paid or received remuneration, is of particular importance, including to the operation of the relevant margin of appreciation (see, among other authorities, Animal Defenders International v.   the United Kingdom [GC], no. 48876/08 , § 108, ECHR   2013 (extracts); Correia de Matos v.   Portugal [GC], no. 56402/12 , §§ 117 and 129, 4   April 2018; and M.A. v. Denmark [GC], no. 6697/18 , §§ 147-49, 9 July 2021). 47.     Lastly, the Court’s subsidiary role in the Convention protection system has an impact on the scope of the margin of appreciation. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia , M.A. v. Denmark , cited above, § 147; see also Protocol No. 15, which entered into force on 1   August 2021, which inserted the principle of subsidiarity into the Preamble to the Convention). 48.     In the present case, the Court considers that a distinction has to be drawn between the applicants’ right to respect for their family life and their right to respect for their private life (see also Mennesson , cited above, §   86) . (a)    Whether there was a violation of the applicants’ right to respect for family life 49.     The applicants have not pointed to any particular obstacles or practical difficulties in enjoying family life together on account of the refusal in question. In the domestic proceedings, the courts focused on the children’s right to respect for their private life. It thus appears that the Supreme Court proceeded on the assumption that the applicants’ right to respect for their family life, in so far as it was affected, was outweighed by the public interests at stake. The Court sees no reason to hold otherwise. It notes that the applicants have lived together uninterruptedly since February 2014, when the twins were brought to Denmark. The children immediately obtained Danish nationality because of their biological father. Lastly, on 22 March 2018 the