ECtHR - Genovese v. Malta

Court name: European Court of Human Rights
State: Malta
Date of decision:
Legal instruments: European Convention on Human Rights (ECHR)
Key aspects: Acquisition of nationality, Determination/confirmation of nationality, Discrimination, Gender, Respect for private and family life

Maltese authorities denied Maltese nationality to a child on the basis that they were born out of wedlock to a Maltese father and a British mother. Domestic legislation only conferred nationality to children born out of wedlock if the mother was Maltese. The Court rejected the argument advanced by the Maltese Government that this case was justified on the basis that a mother is always certain, whereas a father is not. It concluded that no reasonable grounds were adduced to justify such a difference in the treatment of the applicant and found a violation of Article 14 in conjunction with Article 8 ECHR.

Austria - Constitutional Court case of 11 October 2012

Court name: Constitutional Court of Austria (Verfassungsgerichtshof)
State: Austria
Date of decision:
Legal instruments: European Convention on Human Rights (ECHR)
Key aspects: Acquisition of nationality, Birth registration, Burden of proof, Childhood statelessness, Determination/confirmation of nationality, LGBTIQ families, Respect for private and family life, Standard of proof, Surrogacy & reproductive technology

The applicants are children born presumably in a surrogacy arrangement in Ukraine to two Austrian nationals. Even though the custody of the commissioning parents over the applicants was confirmed under the Austrian law, their parentage and consequently the Austrian nationality of the applicants was initially denied. The Court considered that the best interests of the child prevail in such a case over the prohibition of surrogacy under Austrian law, and confirmed the applicants' right to Austrian nationality.