Surrogacy: No right to family life based on child purchase

Publié le : 31 January 2017

Italy questions the first ruling concerning gestational surrogacy and wins the case. Decrypting for Gènéthique from Claire de la Hougue, Doctor of Law.

 

On January 24th, the Grand Chamber of the European Court on Human rights adjudicated over the surrogacy case Paradiso and Campanelli against Italie. The claimants, an Italian couple aged 45 and 55, had contacted a Russian company and obtained a baby born from a surrogate mother, for 50 000 euros.

 

They had brought the child to Italy and asked for the birth certificate to be registered. In Italy, Gestational surrogacy and heterologous medically-assisted procreation (with gamete donation) are banned. The Italian authorities immediately pressed charges for violation of the law on adoption and noted the baby’s abandonment, during which time it appeared that, contrary to what had been said, there was no genetic tie between the child and the claimants. It was decided that the child should be taken away from the couple and placed in a home and then a foster family, in view of adoption.

 

The Second Chamber of the Court, in a ruling from January 27th 2015, decided that taking the child away from the couple would constitute a violation of the claimants’ right to family life. It thus admitted that family life was based on the violation of national and international law, on the purchase of a child.  It went along with the fait accompli, considering that six months of common life, during which the claimants had taken care of the child “as parents”, was enough to create de facto a family life. The Italian Government asked for a new hearing of the case before the Grand Chamber.

 

The Grand Chamber brought up the fact that the claimants themselves are the reason why their relation with their child is unstable on a judicial level, and that the Italian authorities reacted rapidly. In regards to the brevity of their life together, it denied the decision of the Second Chamber, considering that the “conditions enabling one to conclude de facto that there was an existing family life are not met”. (§ 157) It however admitted that, with regards to the solid parental project of the claimants, the facts constitute an interference with their private life.

 

The Grand Chamber considered that the interference was prescribed by law and furthered the legitimate objective of the defense of order and the protection of the rights and freedom of children. It is notable that the Italian authorities took into account the claimants’ behavior and the child’s interest and recognized that the procedure was urgent. It concluded that “agreeing for the child to be left with the claimants, maybe in view of them becoming its adoptive parents, would mean legalizing the situation they created when they violated important rules of the Italian law” (§ 215).  The Italian authorities struck a fair balance between the interests at stake; there is therefore no violation of the article 8 of the Convention.

 

One could have hoped, with the judges DE GAETANO, PINTO DE ALBUQUERQUE, WOJTYCZEK and DEDOV, that the Grand Chamber would have gone further and clearly condemned gestational surrogacy as incompatible with human dignity.

 

However, as reminded by the judges Raimondi and Spano, even though its position is moderated by the importance given to the circumstances, one can only welcome the fact that the Grand Chamber changed the ruling of the Second Chamber, which came as a denial of the legitimacy of the State’s choice of not recognizing that surrogacy has consequences. The ruling of January 27th 2015 which approved child purchase by trying to oblige the state to acknowledge the fait accompli, was a disgrace the Grand Chamber has made right through its present ruling.

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