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Case and Comment
OFFICIAL sanction of anonymous relinquishment of children in Europe dates back to the 12th century, when Pope Innocent II introduced foundling wheels to prevent babies being killed and left in the River Tiber. However, it has only been in the last century that such mechanisms have expanded greatly. Anonymous birth has been sanctioned in France, Luxembourg, Austria and Germany, while the mother is granted the right to keep her identity secret in the Czech Republic, Greece, Italy, Russia and Ukraine. The last century also saw the institution of hundreds of baby-hatches across Austria, Belgium, the Czech Republic, Germany, Hungary, Italy, Latvia, Lithuania, Poland, Portugal, Slovakia and Switzerland.
In 2003, the European Court of Human Rights (ECtHR) gave judicial approval to the practice of anonymous birth in the Odièvre v France ((Application no. 42326/98) [2003] E.C.H.R. 86). In this controversial decision, with seven of the 17 judges dissenting, the court found that the French system of anonymous birth legitimately balanced the rights of the mother and child. It held that since the mother was encouraged to leave non-identifying information for the child, and she was entitled to change her mind at a later date and reveal her identity, an appropriate balance had been struck between the mother's right to privacy and the right of the child to have information on his or her origins.
This approach was heavily criticised by the judges in dissent. They considered that by allowing the mother's decision to constitute an absolute defence to any request for information, irrespective of the reasons for, or legitimacy of, that decision, the mother was given "a discretionary right to bring a suffering child into the world and to condemn it to lifelong ignorance" (joint dissenting opinion of Judges Wildhaber, Sir Nicholas Bratza, Bonello, Loucaides, Cabral Barreto, Tulkens and Pellonpää, at [7]).
Despite the contentious nature of this decision, and the deeply divided bench, this case has remained unchallenged in Strasbourg for the past...