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Italy: Court confirms new hearing into ‘child surrogacy’ human rights row

An Italian request for a new hearing into a human rights dispute involving surrogate parents, has been accepted by the Strasbourg court.

At a 1 June meeting, a panel of judges referred the case Paradiso and Campanelli v. Italy (no. 25358/12) to the Grand Chamber of the European Court of Human Rights.

Last January, the court ruled against Italy, deeming that it was responsible for breaching Article 8 of the human rights convention.

The complaint concerns the placement in social-service care of a nine-month-old child who had been born in Russia, following a gestational surrogacy contract entered into by a couple, which had no biological relationship with the child.

The applicants, Donatina Paradiso and Giovanni Campanelli, are husband and wife. After unsuccessfully attempting to use in vitro fertilisation the couple opted for a gestational surrogacy arrangement to become parents and entered into an agreement with the company Rosjurconsulting in Russia.

A surrogate mother was found and given in vitro fertilisation and a baby was born on 27 February 2011 in Moscow. In accordance with Russian law, Paradiso and Campanelli were registered as the baby’s parents, without any indication that the child had been born through a surrogacy arrangement.

In April 2011 the Italian Consulate in Moscow delivered documents allowing the child to leave for Italy. A few days after their arrival in Italy, Campanelli unsuccessfully asked the municipal authority of Colletorto to register the birth. The Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Collerorto municipality that the file on the child’s birth contained false information.

On 5 May 2011, Paradiso and Campanelli were charged with “misrepresentation of civil status”, and violation of the adoption legislation, in that they had brought the child to Italy in breach of Italian and international law and without complying with the authorisation to adoption obtained by them in December 2006, which ruled out the adoption of such a young child.

On the same date the public prosecutor at the Campobasso Minors Court 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 Campanelli was not the child’s biological father. Gametes from other sources must have been used in the course of the fertilisation procedure. In consequence, the minors court decided on 20 October 2011 that the child should be removed immediately from the applicants and placed under guardianship, 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 Paradiso and Campanelli having been contrary to the law.

The baby was placed in a children’s home, without Paradiso and 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. In April 2013 the refusal to register the Russian birth certificate was confirmed on the ground that its registration would be contrary to public policy, given that the certificate was inaccurate, there being no biological relationship between the child and the applicants. The latter unsuccessfully submitted that they had acted in good faith, and claimed to have been unaware that Campanelli’s seminal fluid had not been used in the Russian clinic.

In April 2013, the child received a new identity, and it was indicated in the new birth certificate that he had been born to unknown parents. On 5 June 2013 the minors court declared that the applicants no longer had the capacity to act in the adoption procedure initiated by them, given that they were neither the parents nor relatives of the child.

Relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, the applicants complain, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent-child relationship established abroad by registering the child’s birth certificate in Italy.

In its Chamber judgment of 27 January 2015, the European Court of Human Rights held, by five votes to two, that there had been a violation of Article 8 of the Convention. It found in particular that the public-policy considerations underlying Italian authorities’ decisions – finding that the applicants had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption – could not take precedence over the best interests of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him.

Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the chamber considered that, in the present case, the conditions justifying a removal had not been met.

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