Instantie

Europese Commissie voor de rechten van de mens

Samenvatting

De klacht van de donor is ook door de Europese Commissie rechten van de
mens niet ontvankelijk verklaard. De contacten tussen de man en het kind
zijn te beperkt geweest. Bovendien betaalde hij geen onderhoudsbijdrage
of anderszins. De relatie tussen de donor en het kind valt daarom niet
binnen de reikwijdte van artikel 8 EVRM.

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THE FACTS The applicant is a Dutch citizen, born in 1948, and resides
Utrecht, the Netherlands. Before the Commission he is represented by J.C.
van Oven, a lawyer practising in The Hague.

The facts of the case, as submitted by the applicant, may be summarised
as follows.

In 1985 the applicant and his then wife met Mrs. T and Mrs. J, a lesbian
couple. Mrs. T and Mrs. J expressed the wish that they would like to have
and raise a child, not by an anonymous sperm donor, but by a known donor.
They considered it important for a child to know its father. After some
conversations Mrs. T and Mrs. J and the applicant agreed that the latter
would be the sperm donor. In November 1986 Mrs. T was artificially
inseminated and on 30 July 1987 a daughter was born. Mrs. T is the child’s
guardian by law.

By judicial order of 27 August 1987 the Disctrict Court judge
(kantonrechter) of Utrecht appointed Mrs. J. as co-guardian.

During Mrs. T’s pregnancy and after the child’s birth the applicant
visited Mrs. T and Mrs. J regularly and between September 1987 and April
1988 baby-sat on Monday afternoons.

In the beginning of 1988 the applicant informed Mrs. T and Mrs. J,
referring to alleged previous agreements on the raising of the child, that
he wished to establish certain visiting arrangements, inter alia, that the
child would spend one weekend per month with him. Mrs. T and Mrs. J denied
that any previous agreements in this respect had been made in the past and
in May 1988 broke off all contacts with the applicant and refused further
contacts between the applicant and the child.

On 30 June 1988 the applicant requested the Juvenile Court judge
(kinderrechter) to determine an arrangement concerning his access to the
child (omgangsregeling).

By interlocutory decision of 8 November 1988 the Juvenile Court judge
declared the applicant’s request admissible. The judge considered, inter
alia, that the applicant’s donorship in itself is an insufficient basis
for the creation of family life within the meaning of Article 8 of the
Convention and that agreements on rights and duties concerning a child are
null and void, but concluded that the applicant’s request was admissible
on the basis of the combination of the applicant’s donorship and his
weekly contacts wiht the child over a period of eight months.

By decisions of 14 December 1988 the Juvenile Court judge refused the
applicant’s request for access, considering that, in view of the
fundamental differences of opinion between the applicant on the one hand
and Mrs. T an d Mrs. J on the other, such access would be contrary to the
child’s interests.

Following an appeal by Mrs. T and Mrs. J against the decisions of 8
November 1988 and 14 December 1988 and the applicant’s appeal against the
decision of 14 December 1988 and the applicant’s Appael (Gerechtshof) of
Amsterdam on 17 April 1989 qaushed both decisions of the Juvernile Court
judge an declared inadmissible the applicant’s request to have access to
the child.

The Court of Appeal first noted that the parties did not challenge the
Juvenile Court judge’s findings that agreements concerning a child are
null and void and that donorship in combination with agreements on a child
born out of donorship cannot lead to the admissibility of a donor’s
request to be awarded access to such a child. In repect of the existence
of family life within the meaning of Article 8 of the Convention between
the applicant and the child, the Court of Appeal held there is no family
life between them. The Court considered in particular that as the
applicant’s actual contacts with the child were of such a summary
character, it could not be concluded on the basis of these contracts, also
in combination with his donorship, that the applicant is or was so close
to the child that he had a family life with the child within the meaning
of Article 8 of the Convention.

Teh applicant’s subsequent appeal in cassation was rejected by the Supreme
Court (hoge Raad) on 26 January 1990. The Supreme Court rejected the
applicant’s argument that there is always “family life” between a
biological father, including a father through donorship, and his child.
In het Supreme Court’s opinion “family life” requires, apart from
biological fatherhood, the existance of additional circumstances. The
Supreme Court added that the Court of Appeal’s opinion, that “as the
applicant’s actual contacts with the child were of such a summary
characer, it could not be concluded, on the basis of these contacts, also
in combination with his donorship, that the applicant is or was so close
to the child that he has a family life with the child within the meaning
of Article 8 of the Covention”, is an appreciation of fact which is left
to this court’s competence. The Supreme Court did not consider this
appreciation to be legally incorrect.

Complaints

1. The aplicant complains under Article 8 of the Convention that the Dutch
atuhorities unjustly considered there is no family life between him and
his child. In his opinion family life exists “ipso iure” between a
biological parent, including a parent through donorship, and his child.
Even if this would not be the case there is, according to the applicant,
family life between him and the child on the basis of the actual contacts
he had with the child and which could not be contined as Mrs. T an d Mrs.
J did not allow them anymore.

2. The applicant further complains that his rights under Article 13 in
conjunction with Article 6 para. 1 of the Convention have been violated
as the Dutch courts refused to declare his request for access admissible
in proceedings in which he wished to invoke his and the child’s rights as
guaranteed by Article 8 of the Convention.

3. The applicant finally complains under Article 14 in conjunction with
Article 8 of the Convention that the Dutch authorities have discriminated
agnaist him by declaring his request to have access to the child
inadmissible, whereas a similar request by a father of a legitimate child
would, in his opinion, undoubtedly be declared admissible, even when there
has been little or no contact at all between such a parent and his child.

THE LAW

1. The applicant complains under Article 8 of the Convention that the
Dutch authorities unjustly concluded that there is no family life between
him, in his capacity as a sperm donor, and a child born out of this
donorship. Article 8 para. 1 of the Convention provides:

“1. Everyone has the right to respect for his private and family life, his
home and his correspondence.”

The Commission recalls it has previously held that “family life” in the
sense of Article 8 of the Convention implies close personal ties in
addition to parenthood (No. 11468/85, Dec. 15.10.86, D.R. 50 p. 199). The
Commission further recalls that the existence or non-existence of family
life will depend on a number of factors, of which cohabitation is only
one, and on the circumstances of each particular case (cf. No. 12402/86,
Dec. 9.3.88, D.R. 55 p. 224).

The Commission notes that the applicant agreed to be a sperm donor in
order to satisfy the desire of Mrs. T and Mrs. J to have and raise a child
together. The Commission further notes that the applicant agreed that Mrs.
T and Mrs. J. would raise the child together and that the custody of the
child would be vested in them. The commission finally notes that there
have been certain contacts between the applicant and the child on a
regular basis during the first months after the child*s birth and that
these contacts ended in May 1988, following Mrs. T and mrs. J.’s refusal
of the applicant’s wish to establish certain visiting rights and
subsequently and of any further contacts between the applicant and the
child.

The Commission considers that the situation in which a person donates
sperm only to enable a woman to become pregnant through artificial
insemination does not of itself give the donor a right to respect for
family life with the child.

As to the applicant’s argument that there is family life between him and
the child as there have been regular contacts between them for a period
of several months after the child*s birth, the Commission notes that these
contacts were limited in time and intensity. Furthermore the applicant has
apparently not considered to make any contribution, financially or
otherwise, to the child’s upbringing. The Commission is of the opinion
that the applicant’s contacts with the child, both in itself and together
with his donorship, form an insufficient basis for the conclusion that as
a result thereof such a close personal tie has developed between them that
the decision by the Dutch authorities on the applicant’s request for
access does not amount to a lack of respect for the applicant’s family
life.

It follows that this complaint must be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant complains under Article 13 in conjunction with Article
6 para. 1 and Article 8 of the Convention that the Dutch courts refused
to declare his request to have access to the child admissible.

Article 13 provides:

“Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting
in an official capacity.”

The Commission recalls that an applicant who has an arguable claim that
his rights guaranteed by the Convention have been violated must have an
effective remedy before a national authority for that claim. The word
“remedy” in this sense does not mean that the applicant’s claim must be
vindicated and that the applicant must “win”. He must have an opportunity
to have his claim examined by a national authority conforming to the
requirements of Article 13, which is able to examine the merits of his
complaint (No. 10496/83, Dec. 14.5.84, D.R. 38 p. 189).

The Commission notes that the applicant made use of the legal means at his
disposal by submitting his request to the Juvenile Court judge, the Court
of Appeal and the Supreme Court respectively.

The Commission is of the opinion that these remedies meet the requirements
of Article 13 of the Convention.

It follows that also this complaint is manifestly ill-founded and must be
rejected under Article 27 par. 2 of the Convention.

3. The applicant finally complains under Article 14 of the Convention in
conjunction with Aricle 8 of the Convention that the decision by the Dutch
courts to declare his request inadmissible discriminated against him in
comparison with a father of a legitimate child.

Article 14 of the Convenion rads:

“The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other
status.”

The Commission notes that the applicant seeks to compare himself with a
father of a legitimate child. In view of the fundamental differences
between the applicant and a father of a legitimate child, the Commission
does not find that these two situations can be compared and considered as
being analogous and, therefore, no question of discrimination arises in
the present case (cf. Eur. court H.R. Van der mussele judgment of 23
November 1983, Series A no. 70, para. 46).

It follows that also this complaint must be rejected as being manifestly
ill-founded within the meaning of Article 27 par. 2 46).

For these reasons, the Commission, by a majority declares the application
inadmissible. DECLARES THE APPLICATION INADMISSIBLE.

Rechters

Norgaard, President, Frowein, Trechsel, Ermacora, Gozubuyuk,Weitzel, Soyer, Schermers, Danelius, Hall, Martinez, Liddy, Pellonpaa,Marxer, Refri, en Kruger