The European Court of Human Rights has ruled against an Italian couple who arranged an in-vitro pregnancy through a surrogate mother in Russia but lost custody of the child in Italy after a DNA test showed the child had no relationship to the couple.
Donatina Paradiso and Giovanni Campanelli claimed in court that Italy had no right to interfere after they traveled to Russia, paid 50,000 euros (currently $53,538) for the newborn, obtained a Russian birth certificate for him and returned to Italy.
The court acknowledged the complexity of the case regarding “T.C.,” born Feb. 27, 2011, but cited Italian law banning the purchase of children, the absence of any biological tie, the short duration of the relationship (six months) and the legal “uncertainty” of the familial ties.
“The child T.C. was born from an embryo obtained from an ova donation and a sperm donation provided by unknown donors, and was brought into the world in Russia by a Russian woman who waived her rights to him. There was therefore no biological tie between the applicants and the child,” the court said.
“The applicants paid approximately EUR 50,000 to receive the child. The Russian authorities issued a birth certificate stating that they were the parents under Russian law. The applicants then decided to bring the child to Italy and to live there with him. The child’s genetic origins remain unknown. The present case thus concerns applicants who, acting outside any standard adoption procedure, brought to Italy from abroad a child who had no biological tie with either parent, and who had been conceived – according to the domestic courts – through assisted reproduction techniques that were unlawful under Italian law.”
The case arose after Paradiso and Campanelli, who were unable to conceive a child, decided to try surrogacy, which isn’t legal in Italy.
They provided sperm and egg to a Russian company that contracted with the birth mother, but the woman gave birth to a child with no biological connection to Paradiso and Campanelli.
Nevertheless, they obtained a Russian birth certificate listing themselves as parents. But they ran into trouble when they returned to Italy and tried to have the child registered.
The Italian Consulate in Moscow had granted the documents allowing the child to go to Italy with the purchasers, but later it informed Italian courts that the paperwork contained “false information.”
Authorities took the child from the couple and placed “T.C.” in an adoption pipeline, from which he later was legally adopted by another family.
The court said it “does not underestimate the impact which the immediate and irreversible separation from the child must have had on the applicants’ private life.”
“While the Convention [on Human Rights] does not recognize a right to become a parent, the court cannot ignore the emotional hardship suffered by those whose desire to become parents has not been or cannot be fulfilled,” it said.
“However, the public interests at stake weigh heavily in the balance, while comparatively less weight is to be attached to the applicants’ interest in their personal development by continuing their relationship with the child. Agreeing to let the child stay with the applicants, possibly with a view to becoming his adoptive parents, would have been tantamount to legalizing the situation created by them in breach of important rules of Italian law. The court accepts that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in the present case.”
The European Center for Law and Justice, which participated in arguments in the case, said it would have been good for the ECHR to “condemn surrogacy” itself.
But the case did give “back to the states the freedom to refuse the fait accompli and to sanction people who illegally resort to surrogacy,” the ECLJ said.
The ruling overturned a previous decision by a panel of the court that said Italy violated the purchasing couple’s rights and had to pay them damages.
In the subsequent decision, the Grand Chamber of the Court ruled, 11-6, that the Italian authorities “could legitimately withdraw the custody of a child obtained illegally through surrogacy from the buying parents.”
“That way, the court gives back to European States a possibility to fight against international surrogacy.”