ECHR says removal of infant from surrogate parents interfered with right to respect for private life but was justified under national laws

Paradiso and Campanelli v Italy (European Court of Human Rights, Grand Chamber, Application No 25358/12, 24 January 2017).

Summary

A majority of the Grand Chamber of the European Court of Human Rights (Grand Chamber) held that the forced removal of an infant from his surrogate parents constituted an interference with the surrogate parents' right to respect for private life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). However, the Grand Chamber considered that the actions taken by the Italian government were within the scope of Article 8(2) of the Convention and that there was therefore no violation of Article 8.

Facts

The applicants were Italian nationals who were unable to have children. They were authorised to adopt a foreign child within the meaning of Italian Law no 184 of 1983 (Adoption Act) but after still being on the waiting list several years later, the applicants decided to try surrogacy. As surrogacy was prohibited in Italy under section 4 of Law no 40 of 19 February 2004 (Medically Assisted Reproduction Act), the applicants entered into an agreement with a Moscow-based clinic, where gestational surrogacy was legal. In a gestational surrogacy arrangement, the surrogate has no genetic connection with the baby. After a surrogate was found, the female applicant, Paradiso, claimed to have transported the seminal fluid of the male applicant, Campanelli, to Moscow.

Following a successful in vitro fertilisation, the surrogate gave birth to a son and gave written consent for the infant to be registered as the applicants' son. The applicants were registered as the infant's parents by the Registry Office in Moscow. The infant's birth certificate, which was certified in accordance with the provisions of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, indicated that the applicants were the infant's parents.

After a couple of months in Moscow, Paradiso returned to Italy with the child and sought to register the child's birth certificate. The Italian authorities refused to register the birth certificate, having been informed by the Italian Consulate in Moscow that the paperwork contained false information. The Italian authorities subsequently issued criminal proceedings against the applicants for falsifying the document and sought urgent orders in the Campobasso Minors Court (Minors Court) that the child be made available for adoption.

The Russian surrogacy laws required that there be a genetic connection between the child and at least one of the intended parents for the arrangement to amount to a surrogacy. The applicants argued that there was a genetic connection between the child and Campanelli. However, this was later disproved through genetic testing which confirmed that Campanelli's seminal fluid had not in fact been used. The Russian surrogacy agency was unable to explain how this had happened. The lack of biological linkmeant that the arrangement was considered an adoption rather than a surrogacy arrangement.

Procedural History in the Italian Courts

In parallel with the criminal proceedings, the Public Prosecutor's Office commenced proceedings in the Minors Court to make the child available for adoption on the basis that he was in a legal state of abandonment. The Court rejected the applicants' request to be appointed guardians of the child pending adoption, holding that the applicants had acted in contravention of the Adoption Act (by arranging an adoption in breach of the Act) and the Medically Assisted Reproduction Act (by entering into an unlawful surrogacy arrangement) and that it was necessary to "put an end to this unlawful situation" (at [37]). The Court made orders for the immediate removal of the child from the applicants' care. The child was placed within a children's home where he stayed for approximately 15 months before he was placed with a family with a view to adoption.

The applicants appealed the decision to the Campobasso Court of Appeal. Although the Court of Appeal dismissed the appeal, its reasoning was different to that of the Minors Court. The Court of Appeal found that as the applicants were not his parents, the child was in a state of abandonment within the meaning of the Adoption Act and the removal of the child from the applicants was justified.

The applicants then lodged an application against the Italian Republic with the European Court of Human Rights (ECHR).

Proceedings in the ECHR

Before the Chamber of the ECHR (Chamber), the applicants alleged that the Italian authorities had breached Article 8 of the Convention which provides that:

  1. Everyone has the right to respect for his private and family life ...
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Chamber considered that the applicants did not have standing before the ECHR on behalf of the child. Accordingly, the Chamber's focus was on the measures leading to the child's removal from the applicants. Relevantly, the Chamber found that (at [98] – [101]):

  • The measures taken by the Italian authorities "amounted to an interference in the de facto family life existing between the applicants and the child" (at [98]) as well as interference in Campanelli's private life.
  • The decision of the Italian courts that the child was in a state of abandonment was not unreasonable and was, therefore, in accordance with the law.
  • The measures leading to the child's removal were pursued with the aim of preventing disorder and were intended to protect the child's rights and freedoms in accordance with Article 8(2) of the Convention.

The Chamber then proceeded to weigh the interests of the applicants and the best interests of the child against the public interest. By majority, the Chamber concluded that Article 8 of the Convention was violated as the Italian authorities had failed to strike a fair balance between the general interest (of the State) and the private interests (of the applicants and the child).

The Grand Chamber subsequently granted the Italian Government's request for the case to be referred to the Grand Chamber.

The Grand Chamber identified the following legal questions for consideration:

  • whether Article 8 of the Convention was applicable;
  • if so, whether the measures which resulted in the child's removal amounted to an interference in the applicants' right to respect for their family life and/or their private life within the meaning of the Convention; and
  • if so, whether the measures were in accordance with Article 8(2) of the Convention.
  • By majority, the Grand Chamber concluded that based on the factual circumstances:
  • No family life existed in respect of the applicants and the child (the Grand Chamber emphasised the lack of a biological connection between the applicants and the child and the duration of cohabitation).
  • The case fell within the scope of the applicants' private life.

Accordingly, the majority found that Article 8 was applicable and then considered whether the Italian authorities' measures were justified by Article 8(2) of the Convention. In considering this issue, the majority reasoned that it was foreseeable that the Italian courts would apply Italian law to the question of whether the child was in a "state of abandonment" and therefore, the interference with the applicants' private life was "in accordance with the law" as provided for in Article 8(2). The majority also found that the measures pursued legitimate aims. Finally, the majority accepted that the measures were "necessary in a democratic society", taking into account that "a margin of appreciation is left to the national authorities" (at [181]). The majority noted that the primary concern for the Italian courts was to "put an end to an illegal situation" (at [204]).

The Grand Chamber acknowledged the impact of the decision on the applicants but concluded that there was no violation of Article 8 of the Convention.

Commentary

Part of the Grand Chamber's focus in this case was the illegality of the applicants' action in obtaining a child in breach of Italian laws. The Grand Chamber acknowledged that the best interests of the child are the primary consideration. However, the majority accepted the Italian Government's evidence that the separation would not cause the child irreparable harm and focussed on the fact that permitting the child to remain with the applicants would be tantamount to "legalising the unlawful situation created by them as a fait accompli" (at [209]). Six of the judges of the Grand Chamber delivered a joint dissenting judgment criticising the majority's firm emphasis upon legality.

In May 2016 the Commonwealth of Australia's Standing Committee on Social Policy and Legal Affairs tabled its report "Surrogacy Matters: Inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements", recommending that commercial surrogacy remain illegal in Australia and that an interdepartmental taskforce should be established to report on the increasing trend of Australians entering into offshore surrogacy arrangements.

The facts of this case, including its procedural history through the Italian courts, arguably makes this decision very case-specific. However, it is a reminder to all individuals considering alternative family planning options, including surrogacy, to ensure that they properly understand the scope and application of all relevant laws and the legal risks involved in pursuing any particular option. This case is a stark illustration of the consequences of a failure to do so.

The full text of the decision can be found here.

Hilary Birks is a Managing Associate and Sarah Lunny is a Law Graduate at Allens.