On the 27 of January the Grand Chamber of the European Court of Human Rights in Strasbourg rendered the FINAL DECISION on the sensitive issue of surrogate motherhood, examining the case of the Italian spouses Paradiso and Campanelli.
The facts are well known: In 2011 the Italian couple went to Russia in order to have a child with surrogacy. The child (born to a Russian surrogate mother) had been registered at the Italian Embassy in Moscow as a child of the Italian spouses and brought to Italy. Later on, when he was nine months, as the Minor Tribunal found that the child had no biological tie, neither with the prospected mother nor with the prospected father and that the couple had violated the International Procedures for Adoption by taking to Italy a foreign child who was not theirs, the court ordered his removal from the couple, for the purpose of adoption.
The couple than summoned Italy before the European Court of Human Rights who rendered a first instance decision (dating back to January 27, 2015). In this judgment the Court had recognized the existence of a “de facto family life between the couple and the child”, and found a violation of Article 8 of the European Convention on Human Rights (“Right to respect for private and family life”).
On the appeal of the Italian government, The Grand Chamber has now reversed the earlier decision. In fact, according to the most recent ruling, the situation of the case did not envisage «family life» the decision of the Italian court is not in conflict with Article 8 and the baby, in the particular situation, would not suffer serious prejudice or consequences by the separation, because there is no biological link, nor family life. The Court also held that the Italian courts have properly taken into account the balance between the different interests at stake.
Quoting paragraph 196 and 197 of the decision,
“As regards the reasons put forward by the domestic authorities, the Court observes that they relied in particular on two strands of argument: they had regard, firstly, to the illegality of the applicants’ conduct and, secondly, to the urgency of taking measures in respect of the child, whom they considered to be “in a state of abandonment” within the meaning of section 8 of the Adoption Act.
The Court has no doubt that the reasons advanced by the domestic courts are relevant. They are directly linked to the legitimate aim of preventing disorder, and also that of protecting children – not merely the child in the present case but also children more generally – having regard to the prerogative of the State to establish descent through adoption and through the prohibition of certain techniques of medically assisted reproduction.”
For a comment on the public hearing held in November 2016 in Strasbourg see:
- “Il caso Paradiso e Campanelli c. Italia di fronte alla Grande Chambre della Corte EDU” by Ilaria Anro (in Italian).
For some earlier comments on the 2015 decision of the Second Chamber see:
- COMMENTS OF THE ECHR CASE OF PARADISO AND CAMPANELLI V. ITALY (from Eclj.org)
- Corte EDU, Paradiso e Campanelli c. Italia (27 gennaio 2015) – maternità surrogata e art. 8 CEDU (from Biodiritto.org) (in Italian)
- The Grand Chamber of the ECtHR in the case of Paradiso and Campanelli v. Italy
- La Grande Camera della Corte EDU nel caso Paradiso e Campanelli c. Italia (in Italian)
[photo by John Ted Daganato – license: CC BY-SA 2.0 – source: Flickr.com]