On 27 January 2015, the Second Section of the European Court of Human Rights concluded to 5 votes against 2 to a violation of Article 8 of The Convention (right to private and family life) in Paradiso and Campanelli v. Italy (n° 25358/12) case, regarding the refusal of the Italian authorities to register the birth certificate delivered in Russia of a child conceived there by surrogacy and the removal of the child from the applicants.
The Court awarded jointly to the applicants 20 000 EUR for damages and 10 000 EUR for cost and expenses (§§ 95 and 98), more than half the price they paid to the Russian surrogate mother for the child (50 000 EUR) (§ 29).
The final statement of Judges Raimondi and Spano summarizes very well significance of the present judgment and the huge step in the case-law of the Court on surrogacy: “in substance, the position of the majority amounts to denying the legitimacy of the choice of the State to not recognize the effects of the surrogate motherhood. If it sufficient to create an illegal connection with the child abroad to oblige the national authorities to recognize the existence of a "family life", it is clear that the freedom of States not to recognize the legal effects of surrogacy, freedom yet recognized by the jurisprudence of the Court (Mennesson v. France, No. 65192/11), 26 June 2014, § 79, and Labassee c. France (No. 65941/11), 2 June 2014, § 58) is reduced to nil” (§ 15 of the dissenting opinion). Yet, in a press release, the Court underestimates the consequences of this judgment, asserting that “in this case the Court focused on the removal of the child and his placement under guardianship, and not on the issue of surrogacy”, as if the child was not conceived by surrogacy and in violation of Italian and international law.
Moreover, it is in a way contradictory for the Court to find a violation of the Convention for the removal of the child from the applicants and his placement in care, as they were not in the best interest of the child, and to indicate in the conclusion that the finding of this breach does not imply the obligation for the State to hand over the child to the applicants (§ 88). This also shows that this case, as many other cases regarding the recognition of new human rights under the Convention, does not concern real human rights violations suffered by the applicants, as the judgment will not change anything for them. The judgment will serve the pro surrogacy lobby, as the only aspect that will concern the execution of this judgment, apart for the sum granted to the applicants for damages and cost and expenses, is the change of the Italian legislation related to surrogacy and further the European and International norms.
This is a third case on surrogacy judged by the Court after Menesson and others v. France/Labasse and others v. France and D. and R. v. Belgium. At present, other such strategic litigation cases on the same issue are pending before it (Laborie v. France, n° 44024/13, Foulon v. France, n° 9063/14 and Bouvet v. France, n° 10410/14), all of them aiming to oblige the member States of the Council of Europe, via the ECHR and abusing of the principle of the best interest of the child, to draft legislation that will recognize affiliation between the children procreated by surrogate motherhood and the couple that ordered them, which is forbidden in those countries, and further to legalize the surrogate motherhood.
The Paradiso and Campanelli v. Italy case concerns a married couple who tried to become parents, but could not succeed because of the infertility of the woman. At 43 and 55 years old respectively, they travelled to Russian Federation to have access to in vitro fertilization using the second applicant’s sperm and the ova of an unknown donor woman, implanting the embryo in the surrogate mother’s womb, as surrogate motherhood is forbidden in Italy, but possible in Russian Federation, due to lack of specific legislation. They concluded a surrogacy contract with the private company “Rosjurisconsulting”. In February 2011 a child resulted, who was handed by the surrogate mother to the applicants in exchange of 50 000 EUR, the applicants being recognized as parents, according to the Russian Federation law. Their demand of the transcription of the birth certificate of the child, in order to be recognized as the legal parents in the Italian legal order was rejected, as the birth certificate contained false information about the parents of the child- the AND test proving that the applicant was not the biological father of the child. A procedure for alteration of the civil status was opened in Italy against the applicants and the internal courts, taking into consideration the best interest of the child and the behavior of his parents (none of them had biological ties with the child, they brought to Italy a child in violation of the international norms of adoption and the contract that they signed with was private company was illicit, according to the Law n° 40/2004 on the medically assisted procreation in Italy), decided to remove the child from the applicants and to give parental rights over the child to the social services. The tribunals also stated that for applicants the child was just an “instrument for satisfying their narcissist desire to exorcise a problem of the couple”. On 26 January 2013, the child was placed in a family and his guardian requested to the internal courts to assign a conventional name to the child.
Dissatisfied with the decisions of the Italian courts, as in the other applications judged or pending before the Court on surrogacy, the applicants alleged before the ECHR a violation of their right to family and private life and of the principle of the best interest of the child due to the non-recognition of the affiliation of their child in Italy and to the placement of the child under guardship. The applicants did not complain to the Court in the name of the child. They claimed their “right” to a child under the Convention, using abusively to this end the principle of the best interest of the child.
Concluding to a violation of the rights of the applicants under Article 8 of the Convention, the majority of the Second Section established that between the couple and the child there is a de facto family life, due to the six months spent with the child in Italy and some weeks in Russia. Regarding Mr. Campanelli, the Court decided that his claim to establish that he is the genetic father of the child concerns his private life under the Convention (§§ 69-70). In their partial dissenting opinion, Judges Raimondi and Spano considered that when assessing whether there is a de facto family or a private life under the Convention, the Section should have been taken into consideration the specific circumstances under which the child was placed. They noted that the Convention cannot afford protection for an act that is illegal and contrary to the public order (§ 3 of the dissenting opinion). Indeed, to decide otherwise would equal to an extra legem judgment of the Court, which would be difficult to execute when it will become final.
Further, the Court acknowledges the legality and the legitimacy of the refusal of the Italian authorities to register the foreign birth certificate and the removal of the child from the applicants. It considered that the measures were justified for reasons of public order, as the deeds of the applicants were in conflict with the law on international adoption and the use of surrogacy which is forbidden in Italy and that the same measures aimed to protect the rights and freedoms of the child (§ 73).
Examining the necessity of the measures, the Court recognized the large margin of appreciation of the national authorities regarding the adoption and care of a child (§ 74). Taking into account the circumstances of the case, the Court considered that the strict application of national law to determine the affiliation of the child and the refusal to recognize the affiliation establish in Russia were reasonable (§ 77 in fine). Among those circumstances the Court enumerated: the absence of genetic linkage between the child and the applicants; the lack of provision in the Russian law of the necessity of a biological linkage between the “intentional” parents and the child in case of surrogacy; the traffic around the birth of the child practiced by the private company Rosjurconsulting and the participation of the applicants in this commerce- the applicants paid for the child, the gametes/embryos were bought from unknown people, the use of a surrogate mother who after the delivery gave the child to the applicants and helped them to obtain a birth certificate-; nevertheless, the heavy consequences for the applicants, as the second applicant was of good faith being certain that he is the genetic father of the child (§ 76).
Further, the Court analyzed the proportionality of the measures taken regarding the child (his removal from the applicants and his placement in care), namely whether the best interest of the child was properly taken into consideration when he was taken from the applicants and placed in care. The Court noted that the measure was required to end an illegal situation in which the applicants placed themselves by violating the laws on international adoption, medically assisted procreation and by their will to circumvent the law on adoption (§ 79). Nevertheless, the Court stated that considerations of public order should be taken into consideration together with the best interest of the child and that the extreme measure of removal of a child from his family environment should be one of last resort and justified only to protect the child confronted with an imminent danger (§ 80). Further, quoting some of its case-law, the Court gave some examples of “imminent danger for the child”- exposure of the child to violence or physical or psychological abuses, sexual abuses, parents’ affective deficiency, parents’ incapacity to provide adequate living conditions (§ 80 in fine) - stating that, in the present case, the decisions taken by the authorities to remove the child from the applicants did not fulfill the required conditions (§ 81). The Court acknowledges that the situation in the present case is a sensitive one and that removal of the child was motivated by the serious suspicions regarding the applicants. Nevertheless, the Court declared itself unsatisfied with the decisions of the internal tribunals. It considered that the development of a stronger emotional bond between the child and his “intentional” parents (§ 82) and the “serious suspicion of the applicants”, in the absence of their conviction for an offence to the adoption law (§ 83), are not sufficient to take the litigious measures.
Moreover, the Court noted that the child received a new identity only in April 2013, considering that “he was inexistent for more than two years” (§ 85). And the Court follows: “it is necessary for a child not to be disadvantaged on the ground that he came into the world by a surrogate mother, and that beginning with the citizenship or the identity which is paramount (see Article 7 of the UN Convention on the rights of the child)” (§ 85). Thus, the Court pointed out to the inadequacy of the elements taken into account by the Italian authorities to decide the removal of the child from the applicants, considering that in the present case a fair balance has not been struck between different interests at stake (§ 86).
Finally, taking into account the fact that the child developed an emotional bond with his new family since 2013, the Court indicated that the finding of a breach of the Convention does not imply the obligation for the State to hand over the minor to the applicants ( § 88).
Regarding the assessment of the proportionality, the dissenting Judges Raimondi and Spano regretted that the majority of the Second Section did not take into account the illegality of the acts of the applicants (§ 3 in fine of the dissenting opinion). Moreover, taking into account the same elements that the majority took into account to assess the necessity and the proportionality of the measure (§§ 8-12 of the dissenting opinion), the Judges arrived to a different conclusion. They considered that by substituting, without a reason, the internal courts evaluation with the one of the majority of the Section, the Court undermine the principle of subsidiarity and the doctrine of the “fourth instance” (§ 13 of the dissenting opinion). They recalled that is such cases, in which the internal tribunals are confronted with difficult issues regarding the balancing of the interests of the child and of the public order, the Court should restrain itself and limit itself to assess whether the decisions of the internal courts are arbitrary. They also considered that the arguments put forward by the Court in §§ 82-84 to find a violation of Article 8 of the Convention were not convincing. As to the lack of the establishment of the identity of the child before 2013, they considered that this has no influence on the situation of the applicants, but that it can constitute a complaint of the child himself (§ 14 of the dissenting opinion).
The ECLJ hopes that the case will be referred to the Grand Chamber, as this is an extra legem and an ultra vires judgment. It protects, under the Convention, a practice which is illegal and contrary to the human rights, it imposes on the States obligations that they did not undertook under the Convention and it infringes the principle of subsidiarity.