BLOG: We may all think we know what ‘personal identity’ means, but what exactly is a human right to personal identity? Does everyone have the same identity rights? This piece outlines how the right has developed at the European Court of Human Rights (ECtHR) linked to recent involuntary adoption cases.
Blogpost by: Professor Jill Marshall, Professor of Law, Royal Holloway, University of London
Personal identity rights are not expressly contained in the European Convention on Human Rights (ECHR) but have been dynamically interpreted by the ECtHR to exist in the brief, expressly worded, ‘right to respect for one’s private life’ in the Convention’s Article 8. From this, we can see that the provision protects against unwanted intrusions, protecting one’s own personal inner space/inner mind, but also a communal, arguably intersubjective, understanding of the formation of identity. Such an understanding has been evident in ECtHR decisions since the 1970s and is found to include relationships with other people and things and the outside world. Cultural rights are also not spelt out in the ECHR, but the rights to maintain a minority identity and to lead one’s private and family life in accordance with one’s traditions and culture have been raised at the ECtHR. This includes cases where children are involuntarily removed from their biological parents by the state, such as the Abdi Ibrahim case from 2021 which concerned involuntary adoption of a young boy. In these cases, the ECtHR engages not only Article 8, the main provision in child protection cases, with its expressly worded protection of family life and the respect for private life but also Article 9’s protection of religion and its expression.
Personal identity rights are not expressly contained in the European Convention on Human Rights (ECHR) but have been dynamically interpreted by the ECtHR.
Professor Jill Marshall
Identity rights are intertwined with autonomy and integrity rights development, which, again, are not expressly mentioned in the ECHR. Many cases have decided that Article 8 therefore also protects one’s sexuality, described by the ECtHR as a matter of intimacy going to the core of who we are, with national states having a narrow margin of appreciation: persons should be free to shape themselves and their fate in ways that person deems best fits his or her personality, and maintain their chosen relationships (see Dudgeon 1981, Cossey 1990 (dissent), Goodwin and I 2002). In my view, this points to a self-created, fluid version of identity, permitting future new versions of ourselves as we deem fit with the free expression of identities for transformative futures. However, this interpretation relates to chosen adult sexual relationships rather than directions for identity development from birth. For example, certain case law on identity appears reductive and conservative, pointing to the safeguarding of a pre-determined self or an internal essence waiting to be discovered, with emphasis on the past. I identify this understanding in cases on women’s confidentiality in childbirth/secret births. These cases increasingly seem to equate a right to personal identity for a now grown-up child, that is, an adult, with a right to know their exact parentage, alluding to notions of knowledge of truth and biology (see Jaggi 2006, Godelli 2012, compared to Odièvre 2003).
Recent involuntary adoption cases
When children enter state care or protection systems, the ECtHR has in recent cases highlighted the need to keep the birth family preserved (Strand Lobben 2017) and retain ties to cultural and religious origins (Abdi Ibrahim 2021).
The ECtHR has in recent cases highlighted the need to keep the birth family preserved.
Professor Jill Marshall
Yet, with particular regard to the latter, the Court states there will continue to be cases where it is not possible to place children with families corresponding to the birth parent(s) cultural, linguistic, and religious background: the most important consideration remains what is in the child’s best interests. This will not always include the maintenance of biological ties, including cultural, religious, and linguistic heritage. According to the Court, what is paramount is the need to ensure a child’s development in a sound environment without harm to the child’s health and development (Kilic 2023 at 121, citing Strand Lobben, para. 207-8). Could this be seen as a combination of past, pre-determined, present safe environment, and future development of children’s identity? It is fundamental to our continued existence that we live in safety and enable children to become aware of their own self-expression and choices for their future. How our biological parentage relates to our identity depends on interpretation and we need to guard against any reductive and conservative strains creeping in without questioning and exploring these issues further.
It is fundamental to our continued existence that we live in safety and enable children to become aware of their own self-expression and choices for their future.
Professor Jill Marshall
Conclusion
Personal identity is complex, and its protection will require differing fact-dependent interpretations. Fitting with the overall aim of human rights law – to enable dignity and freedom – there is a need to safeguard, and potentially develop, the dignity and freedom of each child and young person to choose their own path in life, with every child’s equal entitlement to have this recognised legally and focusing on present safety and future development. This is part of my current project on children’s and young people’s identity rights which I look forward to sharing soon.
Related Publications by the author
Personal Freedom Through Human Rights Law? (2009)
Human Rights Law and Personal Identity (2014)
Personal Identity and the European Court of Human Rights (2022)
Related Cases at the ECtHR
Dudgeon v the UK 1981
Cossey v the UK 1990
Goodwin and I v the UK 2001
Odièvre v France 2003
Jaggi v Switzerland 2006
Godelli v Italy 2012
Strand Lobben v Norway 2017
Abdi Ibrahim 2021
Kilic v Austria 2023
(Photo: Royal Holloway University of London)