Information Note on the Court’s case-law 181
January 2015
Paradiso and Campanelli v. Italy - 25358/12
Judgment 27.1.2015 [Section II]
Article 8
Article 8-1
Respect for family life
Respect for private life
Removal of a child born abroad as a result of a surrogacy arrangement entered into by a couple later found to have no biological link with the child: violation
[This case was referred to the Grand Chamber on 1 June 2015]
Facts – The applicants are a married couple. In 2006 they had obtained authorisation to adopt a child. After unsuccessfully attempting to have a child through in vitro fertilisation they opted for a gestational surrogacy arrangement in order to become parents. For that purpose they contacted a Moscow-based clinic which specialised in assisted-reproduction techniques and entered into an agreement with a Russian company. After successful in vitro fertilisation in May 2010 – supposedly carried out using the second applicant’s sperm – two embryos “belonging to them” were implanted in the womb of a surrogate mother. A baby was born in February 2011. The surrogate mother gave her written consent to the child being registered as the applicants’ son. In accordance with Russian law, the applicants were registered as the baby’s parents. In line with the provisions of the Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents of 5 October 1961 (“the Hague Convention”), an apostille was placed on the Russian birth certificate, which did not refer to the surrogacy arrangement.
In May 2011, having requested that the Italian authorities register the birth certificate, the applicants were placed under investigation for “misrepresentation of civil status” and violation of the adoption legislation, in that they had brought the child into the country in breach of the law and of the authorisation to adopt, which had ruled out the adoption of such a young child. On the same date the public prosecutor requested the opening of proceedings to release the child for adoption, since he was to be considered as having been abandoned. In August 2011 a DNA test was carried out at the court’s request. It showed that, contrary to what the applicants had submitted, there was no genetic link between the second applicant and the child. In October 2011 the minors court decided to remove the child from the applicants. Contact was forbidden between the applicants and the child. In April 2013 the court held that it was legitimate to refuse to register the Russian birth certificate and ordered that a new birth certificate be issued, indicating that the child had been born to unknown parents and giving him a new name. The proceedings for the child’s adoption were currently pending. The domestic court considered that the applicants did not have status to act in those proceedings.
Law – Article 8: Although the right to have a foreign birth certificate registered was not as such one of the rights guaranteed by the Convention, the Court examined the application under the Convention in the context of the other relevant international treaties.
The refusal to recognise the legal parent-child relationship established abroad, the removal of the child and his placement in care had amounted to interference in the applicants’ right to respect for their private and family life. This interference – based, inter alia, on the relevant articles of the legislation on international private law and on international adoption – had been in accordance with the law. Moreover, the measures taken with regard to the child pursued the “prevention of disorder”, in so far as the applicants’ conduct had been contrary to the law governing international adoption, given that recourse to artificial procreation with donated ova or sperm was, at the relevant time, prohibited. In addition, the contested measures were intended to protect the child’s rights and freedoms.
It was not necessary to compare the legislation of member States with a view to ascertaining whether, in the area of surrogacy, there was broad harmonisation in Europe. In the present case, a Russian company – which employed the lawyer representing the applicants before the Strasbourg Court – had received a sum of money from the applicants, purchased the gametes from unknown donors, found a surrogate mother and transferred the embryos to her, handed over the child to the applicants and assisted them in obtaining the birth certificate. To explain this process more clearly, the lawyer in question had explained that it was entirely possible to circumvent the requirement to have a genetic link with one of the future parents by purchasing the embryos, which thus became “one’s” embryos. Irrespective of any ethical considerations with regard to the actions of the company in question, those actions had had very severe consequences for the applicants, especially if it was accepted that the second applicant had been certain that he was the child’s biological father and that it had not so far been established that he had not been acting in good faith. The domestic courts had not acted unreasonably in applying strictly the national law on establishing legal parent-child relationships and by ignoring the legal status established abroad. Nonetheless, it had to be ascertained whether the measures adopted in respect of the child – particularly his removal and placement under guardianship – could be considered proportionate, and specifically whether the child’s interests had been sufficiently taken into account.
The approach adopted by the domestic courts clearly corresponded to the need to put an end to this illegal situation. However, the conditions which would have justified the use of the disputed measures had not been met, for the following reasons. Firstly, the mere fact that the child would have developed stronger emotional ties with his intended parents had he remained with them for longer did not suffice to justify his removal. Further, the courts had considered that it was unnecessary to await the outcome of the criminal proceedings brought against the applicants, since the issue of the applicants’ criminal responsibility was irrelevant. Yet the suspicions against the applicants were also insufficient to justify the disputed measures. In any event, it was impossible to speculate as to the outcome of the criminal proceedings. Further, the applicants would have become legally incapable of adopting or fostering the child only in the event of conviction for a breach of the adoption law. In this connection, the applicants, who had been assessed as fit to adopt in 2006, were held to be incapable of bringing up and loving the child on the sole ground that they had circumvented the adoption legislation, without any expert report being ordered by the courts. Lastly, the child had received a new identity only in April 2013, which meant that he had had no official existence for more than two years. It was necessary to ensure that a child was not disadvantaged on account of the fact that he or she was born to a surrogate mother, first and foremost with regard to citizenship or identity, which were matters of crucial importance. In consequence, the Court was not convinced of the adequacy of the grounds on which the authorities had relied when concluding that the child ought to be taken into the care of the social services. It followed that the Italian authorities had failed to strike a fair balance between the interests at stake.
However, given that the child had undoubtedly developed emotional ties with the foster family with whom he had been placed at the beginning of 2013, the finding of a violation in the applicants’ case was not to be understood as obliging the Italian State to return the child to them.
Conclusion: violation (five votes to two).
Article 41: EUR 20,000 in respect of non-pecuniary damage.
(See also Pontes v. Portugal, 19554/09, 10 April 2012, and Zhou v. Italy, 33773/11, 21 January 2014, Information Note 170; see, on surrogacy arrangements, Mennesson and Others v. France, 65192/11, 26 June 2014, Information Note 175, and D. and Others v. Belgium (dec.), 29176/13, 8 July 2014, Information Note 177; lastly, more generally, see the factsheet on Reproductive rights)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy