Unplanned Fatherhood is Not Sperm Donation: The Unduly Moralistic Approach to Natural Fathers in European Convention Case Law

This article criticises the Strasbourg Court’s reluctance to recognise the familial association between a natural father and a child with whom he had no opportunity to establish effective bonds, unless the child was the product of a committed relationship (by analogy with marriage) and planned conception, whilst downgrading family aspirations to a (less protected) privacy interest if the birth resulted from an extra-marital or fleeting relationship. The author also laments the Court’s readiness to accept superficial justifications for interferences with the father’s private or ‘potential’ family life (where it finds it engaged), such as the refusal to order genetic tests or contact. The Court allows the ‘child’s best interests’ façade to accommodate the mother’s choice of partner (especially in the case of children conceived in adultery) and remains oblivious to the modern plural fatherhood (whereby the husband continues his parental role qua stepfather, without obliterating the natural father’s family life with the child). It is further argued that, to end the gender-based double standard in the treatment of natural parents, the case law must de-couple the father’s family life with the child from the quality of the adults’ relationship and the circumstances surrounding conception (save for narrow exceptions) and acknowledge that currently pater certus est