La nuova procedura consultiva prevista dal Protocollo n. 16 alla luce del primo parere della Corte europea dei diritti dell’uomo in materia di surrogazione di maternità.

On April 8, 2019, in accordance with a request of the French Cour de Cassation, the ECtHR delivered the first advisory opinion since the entry into force of Protocol n. 16 to the ECHR. Basically relying on some previous legal cases (notably: the Mennesson and Labassée judgements of 2014), the ECtHR stated that, under article 8 of the Convention, States parties should recognize in their forum the legal parentage of both intending parents of a child born abroad through surrogate motherhood, where the intending father is also the biological parent. Such outcome can be reached either by the entry in the civil registers of the details of the acts or decisions establishing legal parentage issued abroad or by the adoption, provided that such procedure is promptly and effective. The opinion shed light on some general aspects of the new advisory procedure under Protocol n. 16. In the first place, it is clear that, within the scope of application of article 1, paragraph 1 of the Protocol, the Court can legitimately deal with a « question of principle », which may stem from its own case-law. Therefore, the decision to deliver an advisory opinion may interfere with the power of referral laid down in article 46, paragraph 3 of the ECHR, where the Committee of Ministers of the Council of Europe is still supervising the execution of a judgment of the ECtHR concerning the same or analogous question of law. Secondly, the Court construed reasonably the notion of « question of principle », without stretching it to the limits set out by article 1, paragraph 2 of the Protocol. If, according to that provision, the advisory procedure is not suitable to address a question of principle, which is not, at the same time, relevant to the domestic pending case, however such restriction has not been interpreted too narrowly by Court, as the reasons of the opinion clearly demonstrate.