Strasbourg grapples with international surrogacy and the concept of “family”

Paradiso and Campanelli v Italy (Application no. 25358/12), 24 January 2017 – read judgment

The Strasbourg Court ruled earlier this year that the prohibition on commercial surrogacy arrangements did not justify the Italian authorities’ actions in removing a 9 month old child from its non-biological parents and taking him into social care. Although they found no right to family life applied in the circumstances, there was a right to private life which the Italian authorities had breached.

The majority judgment as well as the dissenting and partially concurring opinions summarised below reveal very different approaches to the concept of family life across the Strasbourg bench.

The issues

Commercial surrogacy arrangements are banned in most of Human Rights Convention states. France, Germany, Austria, Finland, Moldova, Portugal, Serbia, Slovenia, Switzerland and Spain ban all types of surrogacy arrangements. But in Spain and Germany this ban has been softened by the recognition of parenthood for same sex couples with children conceived abroad.

In those countries – including the UK – that only permit non-commercial surrogacy arrangements, even this position has proved somewhat contradictory and probably eventually untenable, since  commissioning parents can claim “reasonable expense” for surrogacy.  It is obviously difficult to draw a line between the expense of a pregnancy and profit above that expense. And since prospective parents are able to travel abroad, the legal arrangements of every jurisdiction have a direct impact on those of other countries. The question of how to deal with the child resulting from a surrogacy arrangement when the parents return to their home where surrogacy is illegal, has created something of a legal quagmire, as this Italian case demonstrates.

This is not the first time the Strasbourg Court has been faced with this issue. In 2014 the Court ruled that children born of a surrogacy arrangement abroad could not be denied status by the French authorities (surrogacy was not legal in France at the time of their birth). In Mennesson v France (65192/11) unreported June 26, 2014, and Labassee v France (65941/11) Unreported June 26 2014, the Strasbourg judges came up with a much clearer approach than they found possible to adopt three years later in Paradiso.

This may be because in Paradiso there was no genetic link between the child and the applicants. In the French 2014 cases the Court put its main emphasis on the child’s right to identity, a core interest in the protection of private life under Article 8. Despite the wide margin of appreciation due to the lack of consensus amongst signatory states, France had exceeded that margin of appreciation in not recognising a legal relationship between children and parents.

We have to ask ourselves whether, in the light of the fast evolving concept of “family” facilitated by scientific advances and greater social acceptance of who should be entitled to be recognition as a parent, surrogacy should no longer be governed by national rules. What may have seemed essential legislation to protect women and prevent the commodification of children, may simply be outmoded.

Facts

The case concerned the placement in care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into by a couple; it subsequently transpired that they had no biological relationship with the child.

The husband and wife applicants had entered into a commercial surrogacy agreement with a clinic in Russia, where such arrangements are legal. They were registered as the subsequent baby’s parents, without any indication that the child had been born through a surrogacy arrangement.

But shortly after their return to Italy, the applicants found that they were unable to register the birth in their local municipality. The Italian Consulate in Moscow informed the local family Court, the Ministry of Foreign Affairs and the local municipality that the file on the child’s birth contained false information.

The applicants were then charged with bringing the child to Italy in breach of Italian and international law and without complying with local rules which prohibited the adoption of such a young child. On the same date the public prosecutor requested the opening of proceedings to free the child for adoption, since, for the purposes of Italian law, he had been abandoned.

In August 2011 a DNA test revealed that Mr Campanelli was not the child’s biological father. There must have been a muddle in the clinic. In consequence, the Italian court decided on 20 October 2011 that the child should be removed immediately from the applicants, on the ground that there was no biological relationship between them and that there existed doubts as to the applicants’ child-raising and emotional capacities, the conduct of Ms Paradiso and Mr Campanelli having been contrary to the law. The baby was placed in a children’s home, without Ms Paradiso and Mr Campanelli being informed of his location or allowed any contact, then in January 2013 the baby was entrusted to foster parents. In addition, he was left without a formal identity.

Relying on Article 8, the applicants complained about the child’s removal from them, and about the refusal to acknowledge the parent/child relationship established abroad.

The reasoning of the majority

The Court considered, firstly, that the measures to remove the child and place him under guardianship amounted to interference with the applicants’ private life, but had been in accordance with the law. In addition, the contested measures pursued the legitimate aim of “prevention of disorder”, in so far as the applicants’ conduct had been contrary to the law.

Secondly, in assessing the necessity of this interference in a democratic society, the Court had to have regard to the best interests of the child. The majority noted that the Italian authorities had decided to remove the child in order to put an end to an unlawful situation. By bringing back to Italy a child whom they passed off as their son Ms Paradiso and Mr Campanelli had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption. According to the Italian authorities, that situation resulted from a “narcissistic desire” or from a wish to resolve problems in their relationship, which cast doubt on their childraising and emotional capacities.

The upshot was that the public interests at stake weighed heavily in the balance, as compared to the applicants’ interests in continuing their relationship with the child. Allowing the child to remain would have been tantamount to legalising the breach of Italian law.

Concurring opinion of Judge Raimondi

Judge Raimondi wanted to emphasis that Article 8 could not be interpreted as enshrining “family life” between a child and persons who had no biological relationship with him or her, where the facts, reasonably clarified, suggest that the origin of the custody was based on an illegal act,” in breach of public order.” In the light of the lack of any biological link between the child and the intended parents, the short duration of the relationship with the child and the uncertainty of the ties from a legal perspective, it was difficult to see that any “family life” existed, particularly in view of the Court’s conclusion that, despite the existence of a parental project and the quality of the emotional bonds, the conditions enabling it to find that there was a de facto family life had not been met.

Joint concurring opinion of Judges De Gaetano, Pinto de Albuquerque, Wojytczek and Dedov

These judges find fault with the Court’s “vague” approach to the definition of family life.  The majority put great emphasis on emotional ties; however, they point out, “emotional bonds per se cannot create family life”. In the light of Article 12 (right to marry and found a family), as well as the relevant provision of the ICCPR and the Universal Declaration of Human Rights, family life, in their view, has a restrictive interpretation.

a family is to be understood a natural and fundamental group unit of society, founded primarily by the marriage between a man and a woman. Family life encompasses, in the first place, ties between spouses and between parents and their children. Through marriage the spouses not only enter into certain legal obligations, but also opt for the legal protection of their family life. The Convention offers strong protection of the family founded by way of marriage.

It was therefore necessary, they say, to look at the nature and stability of the interpersonal links. It was not possible to establish the existence of family life without examining the manner in which the interpersonal links have been established.

This element should be assessed both from a legal and moral perspective. ….. The law cannot offer protection to faits accomplis in violation of legal rules or fundamental moral principles.

…The approach adopted by the majority is not persuasive in that the existence of a parental project is considered as an argument in favour of protection, irrespective of the illegal nature of the specific project recognised in the reasoning. The fact that the applicants acted with premeditation in order to circumvent domestic legislation serves only to undermine their position.

In the instant case the links between the applicants and the child had been established in violation of Italian law, and consequently there was no right to be protected against the law’s interference. By placing the situation under the protective ambit of Article 8’s right to “private life”, the majority had evaded an important question. In their view, the state had not interfered with the applicants’ decision to become parents, but only with the implementation of the applicants’ decision to become parents in violation of the law.

In conclusion, the reasoning adopted by the majority leaves it unclear what exactly is entailed by private life, what is the scope of the protection of the right recognized in Article 8, and what constitutes an interference within the meaning of Article 8. We regret that the reasoning refrained from clarifying these notions.

The Court should have recognised the laws which rendered the applicants’ actions illegal were intended to prevent human trafficking.

It does not take much imagination to pick up a sense of implacable hostility to the idea of gestational surrogacy, at least in this sector of the Court. These judges consider that any arrangement that produces a child outside the bond of pregnancy, “whether remunerated or not”, is incompatible with human dignity.

The unborn child is not only forcibly placed in an alien biological environment, but is also deprived of what should have been the mother’s limitless love in the prenatal stage.

5-judge dissent

At the other extreme, the dissenting judges Lazarova Trajkovska,  Bianku, Laffranque, Lemmens and Grozev find fault with the Court’s reasoning that there was no de facto family life between the applicants and the child. For them it was important that the cohabitation started from the very day the child was born, lasted until the child was removed from the applicants, and would have continued indefinitely if the authorities had not intervened to bring it to an end. The majority dismissed this argument on the ground that the intervention was the consequence of the legal uncertainty created by the applicants themselves “by engaging in conduct that was contrary to Italian law and by coming to settle in Italy with the child”. This group of dissenters feared that the majority had thus made a distinction between a “legitimate” and an “illegitimate” family, a distinction that was rejected by the Court many years ago, most famously in Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31.

They also point out that the national courts came to their conclusions on different grounds. The minors court ordered the removal of the child to prevent an ongoing unlawful situation; the avoidance of Italy’s registration laws and the ban on surrogacy. The domestic Court of Appeal reached its conclusion on the basis that the child was in a state of “abandonment”, since the applicants were not considered by the court to be the parents.

while the Minors Court first and foremost disapproved the conduct of the applicants and therefore sanctioned them, the Court of Appeal started its analysis on the basis of an assessment of the interests of the child, which is as such the correct approach in cases like the present one.

However, they continue, the Court of Appeal’s conclusion was based on an excessively formal approach. The Strasbourg dissenters were surprised as to the finding that the child, who was cared for by a couple that fully assumed the role of parents, was declared to be in a state of “abandonment”.

If the only reason for such a finding was that the applicants were not, legally speaking, the parents, then we wonder whether the domestic courts’ reasoning is not excessively formal, in a manner that is incompatible with the requirements stemming from Article 8 of the Convention in such cases.

But their most important objection goes to the very heart of many surrogacy cases. Whilst many countries have in place a ban on commercial surrogacy arrangements, there is no extraterritorial effect. It is not unlawful for couples to travel to countries where such arrangements are sanctioned by law, and to return with the resulting child.  As the judges in this dissenting opinion point out,

We do not intend to express any opinion on the prohibition of surrogacy arrangements under Italian law. It is for the Italian legislature to state the Italian policy on this matter. However, Italian law does not have extraterritorial effects. Where a couple has managed to enter into a surrogacy agreement abroad and to obtain from a mother living abroad a baby, which subsequently is brought legally into Italy, it is the factual situation in Italy stemming from these earlier events in another country that should guide the relevant Italian authorities in their reaction to that situation.

In short, too much weight had been attached to the need to put an end to an illegal situation (in view of the laws on inter-country child adoption and on the use of assisted reproductive technology) and the need to discourage Italian citizens from having recourse abroad to practices which are forbidden in Italy. These interests were simply not relevant to the balancing exercise that should be addressed to the paramount interests of the child.

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