ECtHR - S.-H. v. Poland

The applicants are the twin children of an Israeli same-sex couple, born through surrogacy i nthe United States. The case concerns the non-recognition of paternity of the applicants for civil registry and nationality purposes in Poland, whose legal system does not recognise surrogacy. In analysing the applications lodged against Poland regarding the right to respect for private and family life (Article 8) and the prohibition of discrimination (Article 14), the Court considered that given the children lived with one biological and one non-biological parent in Israel, had access to fundamental rights there and held dual nationality, Article 8 was not applicable, and hence Article 14 did not apply in conjunction with Article 8 either. Thus, the applications were inadmissible.

Case number
Applications nos. 56846/15 and 56849/15
European Court of Human Rights, S.-H. v. POLAND, applications nos. 56846/15 56849/15, 16 November 2021
Date of decision
Court / UN Treaty Body
European Court of Human Rights
Language(s) the decision is available in
Applicant's country of birth
United States
Applicant's country of residence
Relevant Legislative Provisions

Articles 8(1) and (2), Article 8 in conjunction with Article 14, Article 35 ECHR


The applicants, the twin children of an Israeli same-sex couple, A (a Polish national) and B, faced the denial of Polish nationality. The applicants were born in California as a result of a surrogacy arrangement involving their biological father, A, and a U.S. national, X. While the Superior Court of California acknowledged A and B as the twins’ natural parents, the Polish authorities, beginning with the Government at the first instance, rejected their applications. This was grounded in the Polish legal system's definition of a child’s mother as the woman who gives birth, and their refusal to recognise the judgement of the Californian Court and the corresponding birth certificate due to surrogacy being contrary to Polish public policy and, therefore, unacknowledged in that jurisdiction. Despite pursuing administrative and judicial appeals directed to the Polish Minister of the Interior and domestic courts, the applicants’ quest for Polish nationality encountered consistent rejection on the aforementioned grounds.

After the domestic outcome, the applicants complained to the ECtHR that they had been subjected to discrimination in their right to enjoy private and family life on account of their status as children of same-sex parents. They sought the Court’s intervention to safeguard their rights in accordance with Articles 8 and 14 ECHR.

Decision & Reasoning

Article 8

Beginning with a general interpretation of Article 8, the Court noted that ‘private life’ can embrace multiple aspects of a person’s physical and social identity, which includes the legal parent-child relationship. Also, while Article 8 does not guarantee the right to acquire a particular nationality, it cannot be ruled out that an arbitrary denial of nationality might raise an issue under Article 8 due to the impact of such a denial on an individual’s private life. (paragraphs 64-65)

Applying these principles to the present case, the Court employed a consequence-based approach to examine whether the concerned decisions had sufficiently serious negative consequences for the applicants. Regarding the direct consequences of the refusal to confirm the acquisition of Polish nationality, the Court noted that the applicants had never lived in Poland. Instead, they had resided in Israel since birth, and had dual US/Israeli nationality, so the domestic decisions would not render them stateless. Furthermore, there were no negative consequences for the applicants’ life in their country of residence, Israel, as the recognition of their relationship with the biological father was not questioned there. Finally, the Polish authorities did not leave the applicants in a legal vacuum regarding their nationality and the recognition of the legal parent-child relationship with their biological father. While the domestic decisions had some repercussions on the applicants’ personal identity, and the applicants must have experienced some obstacles due to their lack of Polish nationality, the negative effect on the applicants’ private life did not appear to cross the threshold of seriousness to raise an issue under Article 8. (paragraphs 66-73)

Turning to the impact on the applicants’ family life, considering that the applicants were not resident in Poland, there was no factual basis to conclude that there was an interference with their right to respect for family life. It also did not appear that the family had to overcome any practical obstacles stemming from the Polish authorities’ decisions. More importantly, as the applicants’ family lived in Israel, they and their intended parents all had Israeli nationality, and their legal relationship was recognised in Israel, the lack of Polish nationality did not appear to have any bearing on the applicants’ family life. (paragraphs 74-75) Therefore, overall, the Court found that Article 8 was not applicable to the case. (paragraph 76)

Article 14 in conjunction with Article 8

The Court noted that Article 14 had no independent existence, since it had effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by the Convention and its Protocols. Therefore, it only applies where the facts of the case fall within the ambit of the Convention. As the Court had already found that the applicants’ complaint under Article 8 fell outside the material domain of the Convention, Article 14 would not apply either.(paragraphs 78-80)


The Court declared the application inadmissible, and that Article 8 and 14 were not applicable to the case.

Caselaw cited