ABSTRACT
Biological truth and family life are two values that frequently come into conflict in parentage claims. This tension, which the ECtHR has had to deal with when ruling on cases originating in paternity claims, has created a body of case law in which the Court has generally respected the varying approaches to the issue taken by different states. This analysis focuses on how the ECtHR resolves the dilemma between the two values when the action claiming paternity brought by the putative father threatens the paternity established in favour of another man, the legal and social father of the child in question. None of the cases settled by the CJEU to have had an impact on the notion of “family life” has actually focused on a child’s parentage. The fact that so few of these cases have reached the CJEU can be explained by the ECHR’s recognition of the fundamental rights and guarantees linked to protecting the family and family life over more than 60 years, together with the scant practical relevance of family issues in EU policy (Stein, 2012, p. 1388 et seq.)1. In this context, parentage has been approached only indirectly, in two recent disputes over whether the respective Member States should guarantee maternity leave to two female employees, one British and one Irish, who had become mothers by means of surrogacy.2 For this reason, the chapter focuses on the case law created by
the ECtHR, beginning with an analysis of the same and continuing with an examination of recent trends concerning parentage in some national laws. The overall aim is to frame proposals for regulation that take into account as far as possible the different conflicting interests in parentage claims (chiefly biological truth and family life), acknowledge in each element’s respective value in establishing the child’s best interests and the shaping of her personal identity. When genetic, biological, and social parenthood are not united in one and the same person, it is the law’s task to decide which of these particular attributes shall be construed as constituting parentage. The law must also determine the position of an individual who has genetic or social ties to the child but does not have the status of his or her legal parent (Büchler 2016, p. 35). When the law is not clear or models for attributing parentage diverge significantly, the task falls to the courts, and the ECtHR is no exception.
