J.A.B.S. v. Costa Rica

J.A.B.S. v. Costa Rica

Committee on the Rights of the Child

1 March 2017 

CRC provisions
CRC, Article 8 (preservation of identity)
OPIC, Article 7(f) (admissibility)

Domestic provisions
Constitution of Costa Rica
Options and Naturalisation Act
Civil Code 

Case summary

The complainant was a Costa Rican and United States citizen who travelled to the United States to undergo in-vitro fertilisation. Twin sons were conceived using his sperm and a donor’s ovum carried by a surrogate mother. When the children were born, American courts declared the father the sole legal parent of the twins and their births were registered in the US under the father’s surname as well as the name of the egg donor. The father returned to Costa Rica and applied to register the birth of the children under the same name, but Costa Rican authorities registered the children using only the surnames of the father. The father appealed the decision through the Costa Rican courts.

Issue and resolution
Admissibility. The Committee found the complaint inadmissible on the grounds that it was manifestly ill-founded.

Court reasoning
The Committee found that the father had not provided convincing arguments to demonstrate that the assignment of his surnames to his children, and not the surname of the egg donor as well, constituted a barrier to the children’s ability to have full knowledge of their biological origins or failed to respect their right to preserve their identity. The Committee also held that the father’s allegation that Costa Rican law had been misapplied was inadmissible as he had not provided evidence that the interpretation or application of Costa Rican law had been arbitrary or constituted a denial of justice. Finally, the Committee dismissed the argument that the rights of the children had been impaired by the Civil Registry issuing its decision before the father had a chance to challenge that decision, as he had been able to appeal the decision afterwards before the Supreme Court.

Excerpts citing CRC

“4.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure, whether it is admissible.”

“4.2 The Committee takes note of the decision of the Costa Rican authorities, pursuant to which the record of the children’s birth in the Civil Register must be carried out in accordance with the criteria set forth in the Costa Rican Civil Code, independently of the criteria applicable in the children’s country of birth. The Committee recalls in this regard that, in accordance with article 7 of the Convention, States parties are to ensure the implementation of the right to a name in accordance with their national law. The Committee considers that the author has not presented convincing arguments to demonstrate that the assignment of his two surnames to his children, in keeping with Costa Rican law, constitutes a barrier to their ability to have full knowledge of their biological origins or fails to respect their right to preserve their identity.”

 “4.3 As to the author’s argument concerning the allegedly erroneous application of Costa Rican law by the national authorities, the Committee notes that the interpretation or application of national legislation is primarily the function of the national authorities, unless such interpretation or application is clearly arbitrary or constitutes a denial of justice. In the present case, the author’s argument to the effect that there are contradictions in the domestic legislation is unfounded and, as such, cannot serve as a basis for determining whether the conduct of the national authorities was arbitrary or constituted a denial of justice.”

 “4.4 As to the author’s claims to the effect that it was impossible to challenge the decision of the Civil Registry, the Committee observes that the author was able to appeal that decision and lodge an application for amparo before the Supreme Court. The Committee also notes that the author has not demonstrated to what extent his inability to challenge the decision of the Civil Registry before it was issued impaired the rights of his children as set forth in the Convention.”

 “4.5 In the light of the above, the Committee declares the communication to be manifestly ill-founded and inadmissible under article 7 (f) of the Optional Protocol.”

CRIN comments
CRIN believes this decision is compatible with the CRC. In order to demonstrate a violation of the Convention on the Rights of the Child, a complainant must provide evidence and arguments to demonstrate how the facts of the case amount to a violation of the Convention.

Communication No. 5/2016 (CRC/C/74/D/5/2016)

Link to Full Judgment

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

Wednesday, March 1, 2017 (All day)

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