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Italy: Court rejects parents’ complaint against removal of Russian surrogate child

A decision by Italian authorities to remove a boy from its surrogate parents and place him in care, did not violate Eurpean human rights law.

In its 24 January Grand Chamber judgment in the case of Paradiso and Campanelli v. Italy (application no. 25358/12) the European Court of Human Rights held, by eleven votes to six, that there had been:

no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned 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 with a Russian woman by an Italian couple who had no biological relationship with the child.

The applicants, Donatina Paradiso and Giovanni Campanelli, are Italian nationals who were born in 1967 and 1955 respectively and live in Colletorto (Italy).

After attempting unsuccessfully to have a child, the applicants put themselves forward as adoptive parents and in December 2006 they obtained official court authorisation to adopt a foreign child.

Having waited in vain for a child to be proposed, they decided to resort to assisted reproduction techniques again and to the services of a surrogate mother in Russia. Paradiso claimed that she had travelled to Moscow and handed over her husband’s seminal fluid to a clinic.

A surrogate mother was found and Paradiso and Campanelli entered into a gestational surrogacy agreement with the company Rosjurconsulting. After in vitro fertilisation, two embryos were implanted in the surrogate mother’s womb in June 2010.

A child was born on 27 February 2011 in Moscow. On the same day the surrogate mother gave her written consent to the child being registered as the applicants’ son. In March 2011 the applicants were registered as the new-born baby’s parents by the Registry Office in Moscow. The Russian birth certificate, which indicated that the applicants were the child’s parents, was certified in accordance with the provisions of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.

In April 2011, Paradiso, on the basis of the birth certificate, obtained from the Italian Consulate in Moscow the documents that would enable her to return to Italy with the child.

On 30 April 2011, she arrived in Italy with the child. In a note of 2 May 2011 the Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and Municipality that the paperwork in respect of the child’s birth contained false information. A few days later Campanelli contacted the Colletorto municipality, requesting that the birth certificate be registered.

On 5 May 2011, the prosecutor’s office 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.

In its decision, the European court 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.

It found,however, that the contested measures fell within the scope of the applicants’ private life.

The court considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ 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 room for manoeuvre (“margin of appreciation”) available to them.

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