The Grand Chamber of the European Court of Human Rights has ruled against a couple trying to become parents through surrogacy on the basis that their right to private and family life under Article 8 of the European Convention on Human Rights (ECHR) was not breached.
The applicants were Italian nationals who entered into a surrogacy agreement with a woman in Russia through a surrogacy agency. The child, who was conceived through an IVF surrogacy, was given a Russian birth certificate. The applicants were registered as the baby’s parents, however the certificate did not give any indication of the surrogacy arrangement.
Upon their return to Italy, the applicants unsuccessfully attempted to register the birth and the authorities opened criminal proceedings against the applicants, who were suspected of misrepresentation of civil status, use of falsified documents and breach of the Adoption Act, since they had brought the child to Italy in violation of the legal procedure. It was later found that there was no biological relationship between the applicants and the child, and the child was put into care with no formal identity.
The European Court of Human Rights initially found that there was a de facto ‘family life’ connection between the applicants and the child. The court held that the removal of the child by the Italian authorities constituted an interference with their family life in breach of Article 8 because the authorities had not properly considered the balance between Italy’s public policy considerations, on the one hand, and the best interests of the child, on the other.
On appeal, hoever, the Grand Chamber took a different view. In its decision, the Grand Chamber ruled that having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a ‘parental project’ and the quality of the emotional bonds, the court held that a family life did not exist between the applicants and the child.
The court considered that the actions of the authorities had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. It regarded as legitimate the wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children.
The court then accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the margin of appreciation available to them.
Click here for the judgement in Campanelli and Paradiso v Italy
Click here for a previous Bulletin article on the Irish surrogacy decision in MR and DR.