issued by the Registrar of the Court  
ECHR 252 (2014)  
11.09.2014  
The Belgian authorities did not breach the Convention in carrying out checks  
before allowing a child who had been born in Ukraine to a surrogate mother to  
enter Belgium  
In its decision in the case of D. and Others v. Belgium (application no. 29176/13) the European Court  
of Human Rights decided, unanimously, to strike the application out of its list in so far as it  
concerned the Belgian authorities’ refusal to issue a travel document for the child, A., and to declare  
inadmissible the remainder of the application. This decision is final.  
The case concerned the Belgian authorities’ initial refusal to authorise the arrival on its national  
territory of a child who had been born in Ukraine from a surrogate pregnancy, as resorted to by the  
applicants, two Belgian nationals.  
This refusal, maintained until the applicants had submitted sufficient evidence to permit  
confirmation of a family relationship with the child, resulted in the child effectively being separated  
from the applicants, and amounted to interference in their right to respect for their family life.  
Nonetheless, Belgium had acted within its broad discretion (“wide margin of appreciation”) to  
decide on such matters. The Court also considered that there was no reason to conclude that the  
child had been subjected to treatment contrary to Article 3 (prohibition of inhuman or degrading  
treatment) of the European Convention on Human Rights during the period of his separation from  
the applicants.  
In view of developments in the case since the application was lodged, namely the granting of a  
laissez-passer for the child and his arrival in Belgium, where he has since lived with the applicants,  
the Court considered this part of the dispute to be resolved and struck out of its list the complaint  
concerning the Belgian authorities’ refusal to issue travel documents for the child.  
Principal facts  
The applicants, Mr D. and Ms R., are Belgian nationals who were born in 1960 and 1968 respectively  
and live in Belgium. The applicants also lodged the application on behalf of their child, A.  
The applicants, a married couple, travelled to Ukraine in order to make arrangements for a surrogate  
pregnancy. A. was born in Ukraine from this surrogate pregnancy on 26 February 2013. Mr D. and  
Ms R. declared A.’s birth to the Ukrainian authorities and obtained a Ukrainian birth certificate. Mr  
D. was recorded as A.’s father, and Ms R. as his mother. The birth certificate made no mention of the  
use of a surrogate mother.  
On 15 March 2013 the applicants asked the Belgian embassy in Kyiv to issue a Belgian passport for  
A.; this was refused on the ground that they were unable to present certain documents making it  
possible to confirm the family relationship with the child, A.  
On 19 March 2013 the applicants applied to the President of the Brussels Court of First Instance,  
sitting as the urgent applications judge, asking him to order the Belgian authorities to issue them  
with a travel document to enable A. to come to Belgium.  
On 22 March 2013 they also brought proceedings before the Brussels Court of First Instance, which  
are still pending to date, seeking to have the validity of the child’s Ukrainian birth certificate  
recognised.  
By an order of 5 April 2013, the urgent applications judge rejected their request, on the ground that  
their file left many questions unanswered concerning the surrogate mother and the method of  
procreation used. Furthermore, the applicants had not submitted sufficient evidence enabling the  
court to accept prima facie the existence of a biological family relationship between them and the  
child. The applicants lodged an appeal against that decision.  
On 25 April 2013 the applicants were obliged to return to Belgium without A., since their residence  
permit in Ukraine was about to expire. A nanny looked after the child in their absence and they  
travelled to Ukraine as frequently as possible, in particular between 30 May and 6 June 2013 and  
between 11 and 18 July 2013.  
On 31 July 2013 the Brussels Court of Appeal, ruling on an urgent application, found that the  
applicants had gathered many additional documents in comparison to the file submitted at first  
instance, and especially documents concerning Mr D.’s status as a biological parent. In consequence,  
it ordered the Belgian State to issue him with a laissez-passer or any other appropriate  
administrative document bearing A.’s name, in order to enable A. to travel to Belgium with him.  
The applicants travelled to Ukraine to receive the travel document on 5 August 2013 and returned to  
Belgium on the following day, accompanied by A. All three have been living together in Belgium  
since that date.  
Complaints, procedure and composition of the Court  
Relying on Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for  
private and family life) of the European Convention on Human Rights, the applicants complained  
about the Belgian authorities’ refusal to authorise A.’s entry to the national territory. Under Article 8  
(right to respect for private and family life), the applicants also alleged that their effective separation  
from A., on account of the Belgian authorities’ refusal to issue a travel document, had severed the  
relationship between a baby (aged only a few weeks) and his parents, which was contrary to the  
best interests of the child and in breach of their right to respect for family life. They also considered  
that this separation had subjected all three of them, parents and child, to treatment contrary to  
Article 3 (prohibition of inhuman or degrading treatment). Lastly, relying on Article 13 (right to an  
effective remedy) taken together with Articles 3 and 8, and also Article 6 (right to a fair hearing), the  
applicants alleged that no effective remedy had been available to them for their complaints, having  
regard to the length of the domestic proceedings brought to enable A. to travel to Belgium.  
The application was lodged with the European Court of Human Rights on 30 April 2013.  
The decision was given by a Chamber of seven, composed as follows:  
Guido Raimondi (Italy), President,  
Işıl Karakaş (Turkey),  
András Sajó (Hungary),  
Helen Keller (Switzerland),  
Paul Lemmens (Belgium),  
Robert Spano (Iceland),  
Jon Fridrik Kjølbro (Denmark), Judges,  
and also Stanley Naismith, Section Registrar.  
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Decision of the Court  
Articles 3 and 8 (the authorities’ refusal to issue a travel document to the child)  
The Court noted the change of circumstances since the application had been lodged, namely the  
granting of a laissez-passer to A. and his arrival on 6 August 2013 in Belgium, where he has since  
lived together with the applicants.  
Taking these circumstances into account, the Court considered that the complaint based on the  
Belgian authorities’ refusal to issue a travel document for the child, as presented by the applicants,  
had been adequately and sufficiently remedied and that the dispute should now be considered as  
resolved. In consequence, this complaint was struck out of the list.  
Article 8 (temporary separation of the child and the applicants)  
The Court considered that the situation complained of fell within the scope of Article 8. Even if Mr D.  
and Ms. R. had been separated from the child during the period under consideration, it was not  
disputed that they had wished to look after A., as his parents, from his birth, and that they had taken  
steps in order to allow for an effective family life (quite apart from the fact that all three had been  
living together since the child arrived in Belgium).  
The Belgian authorities’ initial refusal to issue a travel document for A., which had resulted in their  
effective separation, had amounted to interference in the applicants’ right to respect for their family  
life. The Court noted that this interference had been provided for by law and pursued several  
legitimate aims, namely the prevention of crime, especially trafficking in human beings, and the  
protection of the rights of others – those of the surrogate mother and of A.  
As to whether this interference in their family life had been “necessary in a democratic society”, the  
Court reiterated that the States had a relatively wide margin of appreciation in this area, particularly  
where the case raised sensitive moral or ethical issues.  
While acknowledging that the situation must have been difficult for the applicants, the Court  
considered that neither the urgent proceedings, which had lasted four months and twelve days in  
total, nor the period of the applicants’ actual separation from A. could be considered as  
unreasonably long. It considered that the Convention could not oblige the States to authorise entry  
to their territory of children born to a surrogate mother without the national authorities having a  
prior opportunity to conduct certain legal checks.  
In addition, the Court took the view that Mr D. and Ms R. could reasonably have foreseen the  
procedure to be followed in order to have the family relationship recognised and to take the child to  
Belgium, especially as they had been advised by a Belgian lawyer and a Ukrainian lawyer.  
It also noted that the Belgian State could not be held responsible for the difficulties they had  
encountered in remaining in Ukraine for a longer period, even during the entire period that the  
proceedings were pending before the Belgian courts.  
Lastly, the Court considered that the time taken to obtain the laissez-passer had, at least in part,  
been attributable to the applicants themselves, in that they had not submitted sufficient evidence at  
first instance to demonstrate their biological ties to the child.  
The Court concluded that, in refusing until 31 July 2013 to authorise the child A.’s arrival on the  
national territory, the Belgian State had acted within the limits of the margin of appreciation enjoyed  
by it. It followed that the complaint under Article 8 of the Convention was manifestly ill-founded and  
had to be rejected.  
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Article 3 (temporary separation of the child and the applicants)  
The Court noted that the applicants had not submitted any concrete evidence enabling it to  
conclude that the child A. had been subjected to any form of harmful treatment during the period of  
separation from the applicants.  
Equally, although it did not contest the fact that the situation must have been difficult for the  
applicants, the Court considered that, in the circumstances of the case, the threshold of severity  
required for the application of Article 3 had not been attained.  
In consequence, it dismissed this complaint as manifestly ill-founded.  
Other articles  
Having regard to the preceding considerations concerning Articles 3 and 8, the Court dismissed the  
complaints under Articles 6 and 13 as manifestly ill-founded.  
The decision is available only in French.  
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member  
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.  
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