Towards the end of the automatic assignment of the father’s surname to the baby?

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The European Court of Human Rights ruled on Tuesday that the attribution of the father’s surname constituted a “difference in treatment” suffered by women, and which was difficult to escape in current legislation.

In mainland France, four out of five children today bear their father’s surname. Traditionally, it was the father’s last name that was assigned to the birth of a child. What if things have changed since Law of March 4, 2002 which allows parents to pass on the name of the father, that of the mother, or both since the law allows the double name in the event of agreement between the father and the mother. Yet today, seventeen years later, 81.4% of children born in 2019 still had only their father’s last name, 6.6% their mother’s and 11.7% the double name, according to INSEE.

This Tuesday, October 26, the European Court of Human Rights (ECHR) ruled “discriminatory” the automatic attribution to a child, in case of disagreement of the parents, of the name of the father followed by that of the mother. The judges of the ECHR considered that while this rule “may prove to be necessary in practice and is not necessarily in contradiction” with the European Convention on Human Rights, “The inability to waive it is excessively rigid and discriminatory against women.”

A Spanish case at the origin of this decision

At the origin of this judgment, the case of a Spanish mother who gave birth to her child in 2005 after separating from the baby’s daddy and who had not recognized him. For a year, the child bore only his mother’s name until his father officially recognized him. The law provided that in the event of disagreement between the father and the mother, the child would bear the surname of his father followed by that of his mother. A decision contested by the young solo mother who wanted to choose the order of the surnames of her baby. She then brought the case to the European Court of Human Rights (ECHR) which ruled that the “difference in treatment” suffered by the complainant was not justified and therefore constituted a violation of the Convention. Spain was therefore ordered to pay the complainant € 10,000 for “moral damage“.

Since then, the situation has changed in Spain. A law dated 2011 was put in place and in case of disagreement of the parents, it is up to the judge in charge of civil status to decide the order of attribution of the surnames, taking as main criterion “the best interests of the child ”.

Habits that change

In France, the collective Bear my name is campaigning to change the law and institute the automatic attribution for each child of the name of the father and mother. A project also defended by the LREM deputy of Hérault Patrick Vignal. On the internet, opinions are divided, some very classic “The mother gives life, the father gives the name”And others more progressive.

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