22 April 1997

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed below. List of Agents Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B-1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare) The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC 's-Gravenhage) SUMMARY Judgment delivered by a Grand Chamber (*This sumary by the registry does not bind the Court) United Kingdom - refusal to register post-operative transsexual as father of child born to partner by artificial insemination by donor (Human Fertility and Embryology Act 1990, Children Act 1989) I. Article 8 of the Convention A. Existence of "family life" Notion of "family life" not confined solely to families based on marriage - factors such as co-habitation and length of relationship of relevance. X lived with Y, to all appearance as her male partner, since 1979 and was associated in treatment leading to artificial insemination by donor ("AID"). Conclusion: Article 8 applicable (unanimous). B. Compliance with Article 8 Wide margin of appreciation since no common European standard with regard to granting of parental rights to transsexuals or manner in which social relationship between child conceived by AID and person performing social role of father should be reflected in law. Community has interest in maintaining coherent system of family law prioritising best interests of child - unclear whether amendment sought would benefit children conceived by AID or have implications in other areas of family law - in these circumstances State may justifiably be cautious in changing law. Disadvantages suffered by applicants do not outweigh general interest given facts of case, in particular that X not prevented from acting as Z's father in social sense and could, with Y, apply for joint residence order in respect of her. Conclusion: no violation (fourteen votes to six). II. Article 14 of the Convention taken together with Article 8 Article 14 complaint tantamount to restatement of Article 8 complaint - no need to re-examine issues. Conclusion: not necessary to consider complaint (seventeen votes to three). Court's case-law referred to 13.6.1979, Marckx v. Belgium; 17.10.1986, Rees v. the United Kingdom; 18.12.1986, Johnston and Others v. Ireland; 27.9.1990, Cossey v. the United Kingdom; 25.3.1992, B. v. France; 26.5.1994, Keegan v. Ireland; 27.10.1994, Kroon and Others v. the Netherlands In the case of X, Y and Z v. the United Kingdom[fn1] , The European Court of Human Rights, sitting in accordance with Rule 51 of Rules of Court A[fn2] as a Grand Chamber composed of the following judges: Mr R. Ryssdal, President, Mr R. Bernhardt, Mr Thór Vilhjálmsson, Mr F. Matscher, Mr L.-E. Pettiti, Mr C. Russo, Mr A. Spielmann, Mr J. De Meyer, Mr N. Valticos, Mr I. Foighel, Sir John Freeland, Mr A.B. Baka, Mr M.A. Lopes Rocha, Mr J. Makarczyk, Mr D. Gotchev, Mr K. Jungwiert, Mr P. Kuris, Mr U. Lohmus, Mr E. Levits, Mr J. Casadevall, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 25 October 1996 and 20 March 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court on 13 September 1995 by the European Commission of Human Rights ("the Commission") within the three-month period laid down by Articles 32 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 21830/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 of the Convention on 6 May 1993 by three British citizens, Mr X, Ms Y and MsZ. The Commission's request referred to Articles 44 and 48 of the Convention and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court in accordance with Article 46. Its object was to obtain a decision on the question whether there had been a violation of Articles 8 and 14 of the Convention. 2. In response to the enquiry made pursuant to Rule 33 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30). 3. The Chamber to be constituted included ex officioSirJohnFreeland, the elected judge of British nationality (Article43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 4 (b)). On 29 September 1995, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, MrS.K.Martens, Mr F. Bigi, Mr A.B. Baka, MrM.A.Lopes Rocha, MrJ.Makarczyk and Mr U. Lohmus (Article 43 infine of the Convention and Rule 21 5). Subsequently, MrR.Macdonald and Mr N. Valticos, substitute judges, replaced MrBigi, who had died, and Mr Martens, who had resigned. 4. As President of the Chamber (Rule 21 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the United Kingdom Government ("the Government"), the applicants' representative and the Delegate of the Commission about the organisation of the proceedings (Rules 37 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government's memorial on 2 May 1996 and the applicants' memorial on 3 May 1996. 5. On 21 May 1996, the President of the Chamber granted leave to Rights International, a non-governmental human rights organisation based in New York, to submit written comments (Rule 37 2). These were received on 30 June 1996. 6. In accordance with the decision of the President of the Chamber, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 August 1996. The Court had held a preparatory meeting beforehand. There appeared before the(a) for the Government Ms S. Dickson, Foreign and Commonwealth Office, Agent, Mr D. Pannick QC, Mr R. Singh, Counsel, Ms H. Jenn, Department of Health, Mr W. Jenkins, Office of Population Censuses and Surveys, Advisers, (b) for the Commission Mr J. Mucha, Delegate, (c) for the applicants Mr M. Penrose, Solicitor, Mr N. Blake, Counsel. The Court heard addresses by Mr Mucha, Mr Blake and MrPannick, and also replies to questions put by several of its members. 7. Following deliberations on 2 September 1996, the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule51 1). 8. The Grand Chamber to be constituted included ex officio MrRyssdal, President of the Court, Mr Bernhardt, Vice-President of the Court, and the other members and substitute judges (namely MrA.Spielmann and Mr L.-E. Pettiti) of the Chamber which had relinquished jurisdiction (Rule 51 2 (a) and (b)). On 2September 1996, in the presence of the Registrar, the President drew by lot the names of the nine additional judges called on to complete the Grand Chamber, namely Mr F. Matscher, Mr B. Walsh, Mr C. Russo, MrJ.DeMeyer, Mr I. Foighel, Mr D. Gotchev, Mr K. Jungwiert, MrP.Kuris and Mr J. Casadevall. 9. Mr Walsh was unable to take part in the further consideration of the case and was replaced by Mr E. Levits. 10. Having taken note of the opinions of the Government's Agent, the applicants' representatives and the Commission's Delegate, the Grand Chamber decided on 25 October 1996 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rule 38, taken together with Rule 51 6). 11. Subsequently, Mr Macdonald was unable to take part in the further consideration of the case. AS TO THE FACTS I. The circumstances of the case 12. The applicants are British citizens, resident in Manchester, England. The first applicant, "X", was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns "he", "him" and "his". Since 1979 he has lived in a permanent and stable union with the second applicant, "Y", a woman born in 1959. The third applicant, "Z", was born in 1992 to the second applicant as a result of artificial insemination by donor ("AID"). Y has subsequently given birth to a second child by the same method. 13. X was born with a female body. However, from the age of four he felt himself to be a sexual misfit and was drawn to "masculine" roles of behaviour. This discrepancy caused him to suffer suicidal depression during adolescence. In 1975, he started to take hormone treatment and to live and work as a man. In 1979, he began living with Y and later that year he underwent gender reassignment surgery, having been accepted for treatment after counselling and psychological testing. 14. In 1990, X and Y applied through their general practitioner ("GP") for AID. They were interviewed by a specialist in January 1991 with a view to obtaining treatment and their application was referred to a hospital ethics committee, supported by two references and a letter from their GP. It was, however, refused. 15. They appealed, making representations which included reference to a research study in which it was reported that in a study of 37 children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect (Sexual Identity of 37 Children Raised by Homosexual or Transsexual Parents, R. Green, American Journal of Psychiatry, volume135, pages 692-697, 1978). In November 1991, the hospital ethics committee agreed to provide treatment as requested by the applicants. They asked X to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990 (see paragraph 21 below). 16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992. 17. In February 1992, X had enquired of the Registrar General (see paragraph 22 below) whether there was an objection to his being registered as the father of Y's child. In a reply dated 4 June 1992 to X's Member of Parliament, the Minister of Health replied that, having taken legal advice, the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration. It was pointed out that the child could lawfully bear X's surname and, subject to the relevant conditions, X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child. 18. Nonetheless, following Z's birth, X and Y attempted to register the child in their joint names as mother and father. However, X was not permitted to be registered as the child's father and that part of the register was left blank. Z was given X's surname in the register (see paragraph 24 below). 19. In November 1995, X's existing job contract came to an end and he applied for approximately thirty posts. The only job offer which he received was from a university in Botswana. The conditions of service included accommodation and free education for the dependents of the employee. However, X decided not to accept the job when he was informed by a Botswanan official that only spouses and biological or adopted children would qualify as "dependents". He subsequently obtained another job in Manchester where he continues to work. II. Relevant domestic law and practice A. Definition of gender in domestic law 20. English law defines a person's sex by reference to biological criteria at birth and does not recognise that it can be changed by reassignment surgery (Corbett v. Corbett [1971] Probate Reports p. 83 and R v. Tan [1983] Queen's Bench Reports p. 1053 (Court of Appeal)). As a result of this principle, a female-to-male transsexual is not permitted to marry a woman and cannot be regarded as the father of a child. B. Children conceived by artificial insemination 21. The Human Fertility and Embryology Act 1990 ("the 1990 Act") provides, inter alia, that where an unmarried woman gives birth as a result of AID with the involvement of her male partner, the latter, rather than the donor of the sperm, shall be treated for legal purposes as the father of the child (section28(3)). C. Registration of births 22. Section 1(1) of the Births and Deaths Registration Act 1953 ("the 1953 Act") requires that certain prescribed details concerning the birth of every child born in England and Wales, including the names of the parents, be entered in a register. The Registrar General is the official ultimately responsible for the administration of this scheme. 23. If the child's father (or the person regarded by law as the father: see paragraph 21 above) is not married to the mother, his name shall not automatically be entered on the register in the space provided for the father. However, it will be entered if he and the mother jointly request that this be done (section 10 of the 1953 Act, as amended by the Family Law Reform Act 1987). 24. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it. A certificate of the latter kind, known as a "short certificate of birth", is in a prescribed form and contains such particulars as are prescribed by regulations made under the 1953 Act. These particulars are the name, surname, sex and date and place of birth of the individual concerned. Under English law, a child may be given any first name or surname as the parents see fit, and may change his or her name or surname at any time, without restriction. D. Parental responsibility 25. "Parental responsibility" in respect of a child automatically vests in the mother and, where she is married, in her husband. It may, additionally, be granted to certain other persons (see paragraphs 26-27 below). "Parental responsibility" means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his or her property (section 3 of the Children Act 1989: "the 1989 Act"). It does not, without more, confer on the child any rights in the property of the person granted parental responsibility, such as the right to inherit on intestacy or to financial support. Similarly, it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions, from nationality and immigration measures or from rights accruing from that person's citizenship in the European Union. 26. The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement, in a prescribed form, with the mother (section 4 of the 1989 Act). 27. Parental responsibility cannot vest in any other person, unless a "residence order" in respect of the child is made in his or her favour. A residence order is "an order settling the arrangements to be made as to the person with whom the child is to live" (section 8 of the 1989 Act). Any person may apply for such an order (although individuals outside certain defined categories must first seek the leave of the court in order to apply). Where the court makes a residence order in respect of any person who is not the parent or guardian of the child, that person is automatically vested with parental responsibility for the child as long as the residence order remains in force (section 12(2) of the 1989 Act). 28. Thus, although the first applicant could not apply directly for parental responsibility of the third applicant, he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force. On 24June 1994, Mr Justice Douglas-Brown in the Manchester High Court made a joint residence order in favour of two cohabiting lesbian women in respect of the child of one of them (unreported). PROCEEDINGS BEFORE THE COMMISSION 29. In their application to the Commission of 6 May 1993 (no.21830/93) as declared admissible, the applicants complained that, contrary to Article 8 of the Convention, they were denied respect for their family and private life as a result of the lack of recognition of the first applicant's role as father to the third applicant and that the resulting situation in which they were placed was discriminatory, in violation of Articles 8 and 14 taken together. 30. On 1 December 1994, the Commission declared admissible the complaints under Articles 8 and 14 of the Convention, and declared inadmissible complaints under Articles 12 and 13. In its report of 27 June 1995 (Article31), it expressed the opinions that there had been a violation of Article 8 of the Convention (thirteen votes to five) and that it was not necessary to examine whether there had been a violation of Article 14 in conjunction with Article 8 (seventeen votes to one). The full text of the Commission's opinion and of the five separate opinions contained in its report are reproduced as an annex to this judgment[fn3] . FINAL SUBMISSIONS MADE TO THE COURT 31. At the hearing on 27 August 1996 the Government, as they had done in their memorial, asked the Court to hold that there had been no violation of Article 8 or 14 of the Convention. On the same occasion, the applicants requested the Court to reach a finding of violation and to award just satisfaction under Article 50. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 32. The applicants, with whom the Commission agreed, submitted that the lack of legal recognition of the relationship between X and Z amounted to a violation of Article 8 of the Convention, which provides:

"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."

The Government denied that Article 8 was applicable and, in the alternative, claimed that there had been no violation. A. The existence of "family life" 33. The applicants submitted that they had shared a "family life" within the meaning of Article 8 since Z's birth. They emphasised that, according to the jurisprudence of the Commission and the Court, social reality, rather than formal legal status, was decisive. Thus, it was important to note that X had irrevocably changed many of his physical characteristics and provided financial and emotional support to Y and Z. To all appearances, the applicants lived as a traditional family. 34. The Government did not accept that the concept of "family life" applied to the relationships between X and Y or X and Z. They reasoned that X and Y had to be treated as two women living together, because X was still regarded as female under domestic law and a complete change of sex was not medically possible. Case-law of the Commission indicated that a "family" could not be based on two unrelated persons of the same sex, including a lesbian couple (see the Commission's decisions on admissibility in X. and Y. v. the United Kingdom, application no. 9369/81, Decisions and Reports vol. 32, p. 220 and Kerkhoven v. the Netherlands, application no. 15666/89). Nor could X be said to enjoy "family life" with Z since he was not related to the child by blood, marriage or adoption. At the hearing before the Court, Counsel for the Government accepted that if X and Y applied for and were granted a joint residence order in respect of Z (see paragraph 27 above), it would be difficult to maintain that there was no "family life" for the purposes of Article8. 35. The Commission considered that the relationship between X and Y could not be equated with that of a lesbian couple, since X was living in society as a man, having undergone gender reassignment surgery. Aside from the fact that X was registered at birth as a woman and was therefore under a legal incapacity to marry Y or be registered as Z's father, the applicants' situation was indistinguishable from the traditional notion of "family life". 36. The Court recalls that the notion of "family life" in Article8 is not confined solely to families based on marriage and may encompass other de facto relationships (see the Marckx v. Belgium judgment of 13June 1979, Series A no. 31, p. 14,§31, the Keegan v. Ireland judgment of 26 May 1994, Series A no.290, p. 17, 44 and the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no.297-C, pp. 55-56,§30). When deciding whether a relationship can be said to amount to "family life", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see, for example, the above-mentioned Kroon and Others judgment, loc. cit.). 37. In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z's "father" in every respect since the birth (see paragraphs 14-16 above). In these circumstances, the Court considers that de facto family ties link the three applicants. It follows that Article 8 is applicable. B. Compliance with Article 8 1. The arguments as to the applicable general principles 38. The applicants pointed out that the Court had recognised in its Rees v. the United Kingdom judgment (17 October 1986, Series A no.106,p. 19, 47), that the need for appropriate legal measures affecting transsexuals should be kept under review having regard in particular to scientific and societal developments. They maintained that there had been significant development since that decision: in particular, the European Parliament and the Parliamentary Assembly of the Council of Europe had called for comprehensive recognition of transsexual identity (Resolution OJ 1989 C256 and Recommendation 1117 29 September 1989 respectively); the European Court of Justice had decided that the dismissal of a transsexual for a reason related to gender reassignment amounted to discrimination contrary to Community Directive76/207 (P. v. S. and Cornwall County Council, C-13/94, 30April 1996); and scientific research had been published which suggested that transsexuality was not merely a psychological disorder, but had a physiological basis in the structure of the brain (see, for example, Biological Aspects of Transsexualism, Professor L.J.G. Gooren, Council of Europe document no. CJ-DE/XXIII (93) 5 and A Sex Difference in the Human Brain and its Relation to Transsexuality, Zhou, Hofman, Gooren and Swaab, Nature vol 378, p 68, 2 November 1995). These developments made it appropriate for the Court to re-examine the principles underlying its decisions in the above-mentioned Rees case and Cossey v. the United Kingdom (27 September 1990, Series A no. 184), in so far as they had an impact on the present problem. The Court should now hold that the notion of respect for family and/or private life required States to recognise the present sexual identity of post-operative transsexuals for legal purposes, including parental rights. However, they also emphasised that the issue in their case was very different from that in Rees and Cossey, since X was not seeking to amend his own birth certificate but rather to be named in Z's birth certificate as her father. They submitted that the margin of appreciation afforded to the respondent State should be narrower in such a case and the need for positive action to ensure respect much stronger, having regard to the interests of the child in having her social father recognised as such by law. 39. The Government contended that Contracting States enjoyed a wide margin of appreciation in relation to the complex issues raised by transsexuality, in view of the lack of a uniform approach to the problem and the transitional state of the law. They denied that there had been any significant change in the scientific or legal position with regard to transsexuals: despite recent research, there still remained uncertainty as to the essential nature of the condition and there was not yet any sufficiently broad consensus between the member States of the Council of Europe (see, for example, the Report of the Proceedings of the XXIIIrd Colloquy on European Law, Transsexualism, Medicine and the Law, Council of Europe, 1993 and Another Important Organ, S.M. Breedlove, Nature vol 378, p.15, 2 November 1995). The judgment of the European Court of Justice in P. v. S. and Cornwall County Council (cited in paragraph 38 above) did not assist the applicants because it was not concerned with the extent to which a State was obliged to recognise a person's change of sex for legal purposes. Like the applicants, they stressed that the present case was not merely concerned with transsexuality. Since it also raised difficult and novel questions relating to the treatment of children born by AID, the State should enjoy a very broad margin of appreciation. 40. The Commission referred to a clear trend within the Contracting States towards the legal recognition of gender reassignment. It took the view that, in the case of a transsexual who had undergone reassignment surgery in the Contracting State and who lived there as part of a family relationship, there had to be a presumption in favour of legal recognition of that relationship, the denial of which required special justification. 2. The Court's general approach 41. The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary interferences by the public authorities, there may in addition be positive obligations inherent in an effective respect for private or family life. The boundaries between the State's positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both cases the State enjoys a certain margin of appreciation (see, for example, the above-mentioned Rees judgment, p. 14,§35 and the above-mentioned Kroon and Others judgment, p. 56, 31). 42. The present case is distinguishable from the previous cases concerning transsexuals which have been brought before the Court (see the above-mentioned Rees judgment, the above-mentioned Cossey judgment and the B. v. France judgment of 25 March 1992, Series A no.232-C), because here the applicants' complaint is not that the domestic law makes no provision for the recognition of the transsexual's change of identity, but rather that it is not possible for such a person to be registered as the father of a child; indeed, it is for this reason that the Court is examining this case in relation to family, rather than private, life (see paragraph 37 above). 43. It is true that the Court has held in the past that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible, from the moment of birth or as soon as practicable thereafter, the child's integration in his family (see for example the above-mentioned Marckx judgment; the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no 112, p. 29, 72; the above-mentioned Keegan judgment; and the above-mentioned Kroon and Others judgment, p. 56,§32). However, hitherto in this context it has been called upon to consider only family ties existing between biological parents and their offspring. The present case raises different issues, since Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual. 44. The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals. In addition, it has not been established before the Court that there exists any generally shared approach amongst the High Contracting Parties with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law. Indeed, according to the information available to the Court, although the technology of medically assisted procreation has been available in Europe for several decades, many of the issues to which it gives rise, particularly with regard to the question of filiation, remain the subject of debate. For example, there is no consensus amongst the member States of the Council of Europe on the question whether the interests of a child conceived in such a way are best served by preserving the anonymity of the donor of the sperm or whether the child should have the right to know the donor's identity. Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation (see mutatis mutandis the above mentioned Rees judgment, p. 15, 37 and the above-mentioned Cossey judgment, p. 16, 40). 3. Whether a fair balance was struck in the instant case 45. The applicants, with whom the Commission agreed, argued that a number of consequences flowed from the lack of legal recognition of X's role as father. Perhaps most importantly, the child's sense of security within the family might be undermined. Furthermore, the absence of X's name on her birth certificate might cause distress on those occasions when a full-length certificate had to be produced, for example on registration with a doctor or school, if an assurance policy was taken out on her life or when she applied for a passport. Although Z was a British citizen by birth and could trace connection through her mother in immigration and nationality matters, problems could still arise if X sought to work abroad. For example, he had already had to turn down an offer of employment in Botswana because he had been informed that Y and Z would not have been recognised as his "dependents" and would not, therefore, have been entitled to receive certain benefits (see paragraph 19 above). Moreover, in contrast to the position where a parent-child relationship was recognised by law, Z could not inherit from X on intestacy or succeed to certain tenancies on X's death. The possibility of X obtaining a residence order in respect of Z (see paragraph 27 above) did not satisfy the requirement of respect, since this would entail the incurring of legal expense and an investigation by a court welfare officer which might distress the child. In their submission, it was apparent that the legal recognition sought would not interfere with the rights of others or require any fundamental reorganisation of the United Kingdom system of registration of births, since the Human Fertility and Embryology Act 1990 allowed a man who was not a transsexual to be registered as the father of a child born to his female partner by AID (see paragraph 21 above). 46. The Government pointed out that the applicants were not restrained in any way from living together as a "family" and they asserted that the concerns expressed by them were highly theoretical. Furthermore, X and Y could jointly apply for a residence order, conferring on them parental rights and duties in relation to Z (see paragraph 27 above). 47. First, the Court observes that the community as a whole has an interest in maintaining a coherent system of family law which places the best interests of the child at the forefront. In this respect, the Court notes that, whilst it has not been suggested that the amendment to the law sought by the applicants would be harmful to the interests of Z or of children conceived by AID in general, it is not clear that it would necessarily be to the advantage of such children. In these circumstances, the Court considers that the State may justifiably be cautious in changing the law, since it is possible that the amendment sought might have undesirable or unforeseen ramifications for children in Z's position. Furthermore, such an amendment might have implications in other areas of family law. Forexample, the law might be open to criticism on the ground of inconsistency if a female-to-male transsexual were granted the possibility of becoming a "father" in law while still being treated for other legal purposes as female and capable of contracting marriage to a man. 48. Against these general interests, the Court must weigh the disadvantages suffered by the applicants as a result of the refusal to recognise X in law as Z's "father". The applicants identify a number of legal consequences flowing from this lack of recognition (see paragraph 45 above). For example, they point to the fact that if X were to die intestate, Z would have no automatic right of inheritance. The Court notes, however, that the problem could be solved in practice if X were to make a will. No evidence has been adduced to show that X is the beneficiary of any transmissible tenancies of the type referred to; similarly, since Z is a British citizen by birth and can trace connection through her mother in immigration and nationality matters, she will not be disadvantaged in this respect by the lack of a legal relationship with X. The Court considers, therefore, that these legal consequences would be unlikely to cause undue hardship given the facts of the present case. 49. In addition, the applicants claimed that Z might suffer various social or developmental difficulties. Thus, it was argued that she would be caused distress on those occasions when it was necessary to produce her birth certificate. In relation to the absence of X's name on the birth certificate, the Court notes, first, that unless X and Y choose to make such information public, neither the child nor any third party will know that this absence is a consequence of the fact that X was born female. It follows that the applicants are in a similar position to any other family where, for whatever reason, the person who performs the role of the child's "father" is not registered as such. The Court does not find it established that any particular stigma still attaches to children or families in such circumstances. Secondly, the Court recalls that in the United Kingdom a birth certificate is not in common use for administrative or identification purposes and that there are few occasions when it is necessary to produce a full length certificate (see paragraph24 above). 50. The applicants were also concerned, more generally, that Z's sense of personal identity and security within her family would be affected by the lack of legal recognition of X as father. In this respect, the Court notes that X is not prevented in any way from acting as Z's father in the social sense. Thus, for example, he lives with her, providing emotional and financial support to her and Y, and he is free to describe himself to her and others as her "father" and to give her his surname (see paragraph 24 above). Furthermore, together with Y, he could apply for a joint residence order in respect of Z, which would automatically confer on them full parental responsibility for her in English law (see paragraph 27 above). 51. It is impossible to predict the extent to which the absence of a legal connection between X and Z will affect the latter's development. As previously mentioned, at the present time there isuncertainty with regard to how the interests of children in Z's position can best be protected (see paragraph 44 above) and the Court should not adopt or impose any single viewpoint. 52. In conclusion, given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision. It follows that there has been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 53. In addition, the applicants complained of discrimination contrary to Article 14 of the Convention, which provides:

"The enjoyment of the rights and freedoms set forth in [the] 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."

54. The applicants did not develop this complaint in their memorial, since they adopted the findings of the Commission (see paragraph 55 below). However, at the hearing before the Court, their Counsel referred in particular to the fact that had X been born a man he could have been registered as Z's father under the provisions of the Human Fertility and Embryology Act 1990 (see paragraph 21 above). 55. The Government submitted that no separate issue arose in connection with Article 14. In view of its finding of a violation of Article 8 of the Convention, the Commission did not find it necessary to examine this complaint. 56. The Court considers that the complaint under Article 14 is tantamount to a restatement of the complaint under Article 8, and raises no separate issue. In view of its finding in respect of the latter provision (see paragraph 52 above), there is no need to examine the issue again in the context of Article 14. Accordingly, it is not necessary to consider this complaint. FOR THESE REASONS THE COURT

1. Holds unanimously that Article 8 of the Convention is applicable in the present case;

2. Holds by fourteen votes to six that there has been no violation of Article 8;

3. Holds by seventeen votes to three that it is not necessary to consider the complaint under Article 14 of the Convention taken in conjunction with Article 8.

Done in English and French and delivered at a public hearing at the Human Rights Building, Strasbourg, on 22 April 1997. Rolv RYSSDAL President Herbert PETZOLD Registrar In accordance with Article 51 1 of the Convention and Rule53 2 of Rules of Court A, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Pettiti; (b) concurring opinion of Mr De Meyer; (c) partly dissenting opinion of Mr Casadevall joined by Mr Russo and Mr Makarcyzk; (d) dissenting opinion of Mr Thór Vilhjálmsson; (e) dissenting opinion of Mr Foighel; (f) dissenting opinion of Mr Gotchev. R. R. H. P. CONCURRING OPINION OF JUDGE PETTITI (provisional translation) I voted with the majority for the finding that there was no violation of Article 8 of the Convention. However, I consider that the impact of the judgment could have been strengthened by expanding the reasoning and adopting different wording in a number of places. The text adopted seems to me to be based too much on the personal demands of X and Y alone, which are specific to their individual situations, and on a weighing of the practical and social advantages and disadvantages which might result from changing, or not changing, Z's civil status. As this is the first case in which the European Court has had to deal with both transsexualism and the problem of a child's right to know his biological origins, it should, in my opinion, have given more thought to the assessment of family life within the meaning of Article 8 and to the conflict of interests between parents and children. Moreover, the instant case concerned a couple, X and Y, composed of a post-operative transsexual and a woman who had produced the child Z as a result of artificial insemination by anonymous donor. Did X, Y and Z form a family? A family, in general, cannot be a mere aggregate of the individuals living under one roof. The ethical and social dimension of a family cannot be ignored or underestimated. If there was a family, as there appears to have been in the case before the Court, can the object sought by X be imposed onZ? Studies have shown that not all transsexuals have the same aptitude for family life (after an authorised operation) as a non-transsexual (see the joint research by Alby et al., International Freudian Association, "Sexual identity and transsexuals", and the study by L. Pettiti, "Les transsexuels, Que sais-je?", Presses Universitaires de France). The X, Y and Z case touched upon the conflict between the demand of a female-to-male transsexual (X) to be registered as the father of his female cohabitee's child and the demand which could in due course be made by Z, who might sooner or later come to consider that her own interest lies in finding out who her biological father was. The Court should therefore also have assessed the conflict between family law, the law of filiation and the direct effect of the United Nations Convention on the Rights of the Child, to which it did not refer. Should there be another case like this one, it would no doubt be desirable for the Commission and the Court to suggest to the parties that a lawyer be instructed specifically to represent the interests of the child alone. The growing number of precarious and unstable family situations is creating new>

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.