Condemns Spain for preventing a woman from changing the order of her daughter's surnames

In 2017, a reform of the Civil Registry came into force that allowed parents to choose the order of the babies' surnames, with the prior agreement of the parents. However, it was not something that could not be done before then: since the year 2000 it has been allowed, in Spain, to register minors with the mother's surnames first, as long as the parents send a request to the judge registrar and a mutually agreed statement on the change in the order of surnames. In this scenario, a Spanish woman tried to put her last name first to her daughter, born in 2005, but was not allowed, since, in case of disagreement, the minor was expected to take the paternal last name first.

Now, the European Court of Human Rights (ECHR) has condemned Spain to compensate the mother for preventing her from putting her last name in the first place, as seen in a sentence issued this Tuesday, collected by Europa Press, in which the magistrates have agreed that the Spanish State must pay 10,000 euros to the plaintiff for non-material damage and 23,853 euros in costs. The Strasbourg-based court has unanimously concluded that there has been a violation of article 14 —relating to the prohibition of discrimination— of the European Convention on Human Rights in conjunction with article 8, which contemplates the right to respect for private life and familiar.

The magistrates have estimated that "the automatic nature of the application of the law that prevented the national courts from taking particular circumstances into account of the case in question" is not a "valid justification from the point of view of the European Convention". The plaintiff assured that the father of the minor insisted that she terminate the pregnancy, so she cut off all contact with him. In 2005, she gave birth to her daughter and registered her with both of her last names —and not with her father's. The following year, the father filed a paternity suit. In the end, the Spanish Justice established that the minor would bear the father's surname followed by the mother's.

Discrimination against women

The ECtHR has explained that, although the rule that the paternal name should come first in cases where the parents disagree, it may be "necessary in practice" — "and was not necessarily incompatible with the Convention "—, the applicant's failure to obtain a derogation had been "excessively strict and discriminatory against women". In addition, the magistrates have indicated that "if legal certainty can be demonstrated by choosing to put the father's name first, it can also be demonstrated by the mother's surname."

In the framework of her defense, the State Attorney's Office rejected the existence of discrimination, considering that the minor in question could, if she wishes, change the order of her last names once she turns 18. The court has dismissed the arguments defended by the Government, considering that they have not been sufficiently objective or reasonable to justify the difference in treatment imposed on the mother of the minor.

Strasbourg has underlined that "the current social context" in Spain does not correspond to the one existing at the time the law being debated in this case was adopted. In this sense, he stressed that the Spanish State has "fulfilled its commitments" and has adopted "numerous" measures "aimed at equality between men and women." The court has ensured that it "takes note of this development", but has insisted - in the framework of the application of the law in this case - that references to presupposed traditions of a general nature or the social attitudes of the majority that prevail in a given country "are not sufficient to justify a difference in treatment based on sex".