Paradiso and Campanelli v Italy: The ECHR validates the sale of a child through surrogacy
By Gregor Puppinck, doctor of law, Director of the European Centre for Law and Justice
and Claire de La Hougue, doctor of law, lawyer at the Strasbourg Bar.
Translation of an original article published in French, in the Revue Lamy Droit Civil, RLDC, n° 126, May 2015 p. 41-45.
On January 27th 2015, in the case of Paradiso and Campanelli v. Italy, the European Court of Human Rights (ECHR) decided, by five votes to two, that a child born by surrogacy abroad and those who ordered him enjoy protection of the right to family life even though the child was obtained fraudulently, against payment, without genetic link and after a very short period of cohabitation. The Court concluded that Italy could refuse to recognise the filiation established in Russia, but that taking the child away from the sponsors infringed their right to private and family life.
ECHR, 27 Jan. 2015, ap. 25358/12, Paradiso et Campanelli v. Italy
In 2006, the claimants, spouses of Italian nationality, obtained authorisation to adopt, with the exclusion of young children. In 2008, they contacted the Russian firm ‘Rosjurconsulting’, with a view to obtaining a child by a surrogate mother. The firm purchased gametes, created an embryo in vitro, recruited a surrogate mother and delivered the new-born in March 2011 with a Russian birth certificate indicating the applicants as parents; all for the sum of €49,000. When they returned to Italy with the child, the transcription of the birth certificate was refused. A DNA test arranged by the Court proved that there existed no genetic link between the child and the applicants, contrary to their statements. They were additionally charged for distorting the civil state, forging and violating the law on adoption. Stating the child did not have known biological parents and that the applicants demonstrated by their conduct that they did not have the emotional and educative capacity to receive a child, the judge placed the child
with social services to be adopted and decided that the claimants no longer had standing in the adoption proceedings.
Before the Court, the applicants, represented by the manager of Rosjurconsulting acting in their name and in that of the child, claimed Italy had infringed their right to private and family life protected by Article 8 of the European Convention on Human Rights.
The Court rules that the applicants cannot act in the name of the child, who has a guardian since October 2011. The Court finds that the claim relative to the transcription is inadmissible for non-exhaustion of domestic remedies. Then remains the decision to separate the child from the spouses. For a majority of judges (5 out of 7), Article 8 is applicable because, with regard to the child, the applicants behaved like parents for six months. The majority considers that this decision contradicts the best interest of the child and consequently violates the rights of the couple. The Court allocates €20,000 in reparation for moral damage and €10,000 for fees and expenses. However, the Court does not require the child to be given back to the applicants, because of the links established with the foster family.
The judgement marks a new step in the extension of the notion of family life and of its
protection to an illegally established situation (I), allowing to identify the interest of the
couple to keep the child with that of the child not to be separated from them (II). In fine,
the interest of the child confers on the couple the right to keep him and, according to the
two dissenting judges “shatters the freedom of States not to recognise any legal effects to
I .The extension of “family life” to the case of the sale of a child
The Court considers that family life is a pure question of fact (A), without considering the illegal circumstances of birth (B).
A. The subjectivisation of “family life”
The Court recalls that the protection of family life applies as soon as “close personal ties” exists (§67, with a creative reference to Marckx v Belgium, n°6833/74, June 13th1979, §31). Contrary to Article 12, which links marriage and family, according to the Court family life can exist without marriage or civil union (that is to say de facto), without a child, or difference of sex or even cohabitation (Vallianatos v Greece, n° 29381/09, November 7th 2013 §73).
In light of this extensive conception of the notion of family life, the majority considers it applicable in this case, but nevertheless judges that the interest of the child is to reside with his foster family and that the applicants do not have standing to act in his name (§50). What then is this family life founded on? Neither on biological links, nor on duration, nor on law, but on appearance: the Court outlines that the claimants behaved with regard to the child “like parents” (§69) for six months, which is sufficient to constitute de facto family life. The material aspect of this family life is weak; therefore, what is decisive is rather the intentional element: the will of the sponsors, called intended parents by the Court, to constitute a family. The Court does not outline it enough, but the very existence of the child results from their desire. The primary cause for the existence of the child and the family life lies in the signature of the surrogacy contract. As of the signing of the surrogacy contract, “an intended family life” exists (D and others v Belgium, n° 29176/13, July 8th 2014, §49).
Thus, throughout its case law, the Court takes the role of protecting all forms of family life, independently of biology and legality. Such family life results only from the individual will of adults and can be imposed on the children and on society. In this sense already, against the prohibition of heterologous IVF, a Chamber had asserted that States should not be reluctant to allow new types of “unusual family relations… which do not follow the typical parent-child relationship based on a direct biological link”. For example, this can be a “family relationship between persons which is not based on descent but on contract, for the purpose of supplementing or replacing biological family relations” (S.H. v Austria, n° 57813/00, April 1st 2010, §81). The contract is nothing but the desire of adults over children. The Paradiso judgement thus falls within the lines of this judgment finally reversed by the Grand Chamber.
B. The protection of an illegal family life
Formerly, family life implied marriage. Since then there has been the notion of de facto family, in other words out of the law, particularly with regards to illegitimate children. The Court currently recognises de facto and contra legem family life (G. Puppinck “L’affaire Vallianatos et autres c/ Grèce et la dilution progressive de la notion de vie
familiale”, RLDC 2014/111, n°5289).
In a case concerning an incestuous family, the Court ruled that a family founded on a relationship contrary to public order cannot benefit from the protection conferred on family life – even de facto (Stübing v Germany, n°43547/08, April 12th 2012, §61). Similarly, in the Paradiso case, against the opinion of the majority, the dissenting judges emphasised that according to them, Article 8 “cannot (…) be interpreted as enshrining ‘family life’ between a child and people devoid of any genetic link with them as soon as the facts, reasonably made clear, suggest that the origin of the custody is founded on an illegal act in contravention with public order” (D.O.,§3).
1. The ignorance of international norms
The Court takes care to recall “that the Convention should not be interpreted in isolation, but in a way that conforms with the general principles of international law (…) taking into account all rules pertaining to international law applicable in the relations with the parties, particularly those relative to the international protection of human rights” (§53). However in the section devoted to the presentation of relevant international law, the Court mentions only the Hague Convention eliminating the requirement of legalisation of foreign public acts (5/10/1961) and omits other relevant instruments for the qualification of the facts at the origin of the case and justifying the decision of the Italian authorities.
Thus, the Court omits the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, ratified by Italy and Russia, which defines the sale of a child as “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration” (art. 2a). This definition applies to the facts at issue. This Protocol obliges States not to give effect to these sales and to prosecute active parties. Article 4 of the ECHR prohibiting slavery is also applicable as soon as a person has been sold. The Court does not mention either the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (art.4) and the European Convention on the Adoption of Children (Revised) (art. 5), which notably demands that the consent of parents, who abandon the child, has not been induced by payment or compensation of any kind and that the consent of the mother has been given only after the birth. The Hague Convention (art. 32) and European Convention on the Adoption of Children (art.17) add that “No one shall derive any improper financial or other gain from an activity relating to the adoption of a child”, which corresponds to article 21d) of the Convention on the Rights of the Child and targets the activity of Rosjurconsulting. The standards concerning illegal adoption apply to this form of heterologous surrogacy because it consists in creating orphans just to sell them “due to the lack of adoptable children” (§77). Neither does the Section mention the resolutions of the Parliamentary Assembly of the Council of Europe which condemn child trafficking, nor its own case law which establishes the link between surrogacy and trafficking in human beings (D and others v. Belgium (dec.) (n° 29176/13, July 8th 2014,
All these regulations, intended to prevent the abduction, the sale of, or traffic in children (art.1 of the Hague Convention) are violated in this case. Between a child conceived naturally and sold by their parents at birth and the facts of the case, the only difference is the existence of an intermediary and the artificial character of the fertilisation. For the child, there is absolutely no difference: in both cases the child has been conceived to be sold. The Court states that it is “master of the characterisation to be given in law to the facts of the case” (§54). It would have been fair if the Court qualified these for what they are; the sale of a child, but the protection according to this family life would have contradicted international law which obliges the States to punish the buyers of a child. Therefore the Court should have rejected this application for abuse of right (art.17).
In support of its position, the majority refers to the case Wagner and J.M.W.L. v Luxembourg (n° 76240/01, June 28th 2007) in which the Court protected an adoption obtained abroad in violation of the Luxembourg law because it was undertaken by a single parent. But such an adoption does not constitute a crime in international law and in that case the claimant had received the child more than 10 years before. The Court omits to apply international law to the facts. The Court also abstains from carrying any moral judgment on them.
2. Moral scepticism
The Court observes the existence of family life without questioning the morality of the facts at the origin of the case, on the sale of gametes and the “renting” of the surrogate mother. The Court admits that Italy can, in its internal order, consider the facts as illegal, but it specifies it reasons “independently of any ethic consideration” (§76). In the case of
Mennesson v. France (65192/11, 26/06/2014), the Court also abstained from questioning surrogacy, conceding that governments can make a “decision on ethical grounds” (§83) with regards to its own approach according to their own “perception of the issue” (§62). Already, in the first judgment on S. H. v. Austria concerning heterologous IVF, the Chamber had asserted “that concerns based on moral considerations or on social acceptability were not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique in general” (§54). The Grand Chamber balanced this statement in clarifying that these concerns even though insufficient “must be taken
seriously” (S.H. v Austria, GC, November 3rd 2011, n° 57813/00, §100).
This restrain of the Court with regards to ethics manifests a moral scepticism complemented by an empiricism tending to reduce reality to the mere consideration of facts. For the Court, family life is a fact that deserves protection simply by reason of its existence.
The Court does not examine the ethical reasons of the Italian decision and reduces them
to cold will to defend public order (§§ 73 and 80) as opposed to the best interest of the
child and the despair and supposed good faith of the applicants presented as victims of
the “machination of the firm Rosjurconsulting” (§76-77). The Court seems convinced of
their good faith; however Mrs Paradiso has fabricated a pregnancy, and the applicants
“have, among others, declared to be the biological parents, and have progressively
corrected their versions as they were denied”(§27). Similarly in the Mennesson case, the
Court had judged that the French authorities had acted with a formal aim: so that people
“conform to the choice made democratically within that community” (§84).
II A violation of the family life of the sponsor couple in the name of the interest of the child
For the Section, Italy could legitimately refuse the transcription of the Russian birth certificate (A) but could not separate the child from his sponsors (B). The Section nevertheless removed every individual impact from its judgement by indicating that the child’s interest is now to remain with his foster family.
A. Civil state and biological reality
The Court admits that Italy may refuse to transcribe a foreign act, although legal, on the grounds that it is contrary to reality. However, it refrains from favouring biological reality over legality.
1. The absence of an obligation to transcribe a foreign act contrary to reality
The applicants complained of the refusal to transcribe the child’s birth certificate into the Italian civil registers. The Court finds the complaint inadmissible for non-exhaustion of domestic remedies (§62). Nevertheless, it includes it in the “situation [that] constitutes an interference with the rights guaranteed by Article 8” (§71) and examines it closely.
After having noted that the apostil does not prove the truthfulness of the content of the birth certificate, the Court accepts that Italy considers the child “a son of unknown parents” (§34) due to the anonymity of the sellers of the gametes and “on the grounds that the applicants had no genetic link with the child” (§77), which justifies the
application of Italian law and therefore the refusal of the transcription of the certificate and the declaration that the child was in a state of abandonment. The Court finds these decisions to be legal and reasonable (§77). In other words, by reason of absence of a genetic link with the child, the Court accepts that a State refuses to transcribe a foreign birth act, even though it was drawn up in conformity with the foreign law and declares a legally obtained birth. The Court abstained from imposing a complete dissociation between filiation and generation, that is to say between law and reality. To conclude otherwise would oblige States to transcribe acts contrary to reality, which is to say to
approve forgeries on the ground that they are legal in other countries.
This confirms the restrictive interpretation of the Mennesson judgement according to which the refusal to transcribe filiation violates the rights of the child uniquely with regard to the biological parent. The Court emphasises: “Having regard to the importance of biological parentage as a component of identity (…), it cannot be said to be in the interests of the child to deprive him or her of a legal relationship of this nature where the biological reality of that relationship has been established and the child and parent concerned demand full recognition thereof.” (Mennesson, aforementioned, §100)
2. The split between biological reality and legality.
Do not be mistaken: despite its declarations on the importance of biological filiation, the Court does not grant it any objective value. Its value depends on individual will: biological filiation is valid if it is demanded. The proof is that the Court absolutely ignores the biological parents of the child. The question of the right of the child to know his origins is not even raised. The counsel of the applicants probably knows them as he
supervised the entire surrogacy process.
The Court emphasises that the “parental link” can be “genetic or otherwise” (§80), it carefully maintains dissociation between filiation and biology, that is to say between law reality, in order to allow human will to prevail, by law, over material reality. Thus, biology, filiation and the family as interdependent realities are replaced by independent
and subjective notions of parental links, intended parents, family life; and as for the intended child, he is the object of a parental plan. In fact, confronted by a biological artefact to a false filiation and to an appearance of family, the Court, in order to admit them into law, has no choice other than to take over these subjective notions. They do not
have any content other than that determined by individual will: thus, in order to be or not to be an intended parent, it suffices to want it. To accept into law these subjective notions and their indefinite extension is to accept that the law detaches from reality to depend in fine on individual will and, through law, gives it the illusion of being real. The child who was bought, on the other hand, does not have the choice, hence the necessity to protect him with realism.
B. The validation of the effects of surrogacy in the name of the interest of the child
Specifically, the main issue of the case concerns the legitimacy of the measure of separation, because it is the most effective sanction against surrogacy. Its determination is already influenced by the qualification of the facts as family life and is concentrated on the evaluation of the best interest of the child. The observation of a violation of this interest opposes the assessment of national judges and incurs the criticism of infringing subsidiarity.
1. The best interest of the child: the source of the sponsors’ right
In order to determine whether the authorities had arranged for “a fair balance between public interest and the private interests at stake, founded on the right to respect for private and family life” (§75), the Court controls whether the measure of separation conforms with the best interest of the child.
It recalls that according to well-established case law “the separation of a child from the family context is an extreme measure that should be used only in the very last resort” in order to protect the child from “an immediate danger” (§80). It adds, to back the rights of the sponsors, that to shatter the family link “means cutting a child off from its roots” (Gnahoré v. France, n° 40031/98, September 19th 2000, §59), without noting the cynicism of this statement for the child concerned
In its assessment, the Court first of all considers that the urgency to protect the child and to remove him from his buyers did not justify separation. It then notes that since the criminal proceedings against the applicants had not concluded, it is not “possible to speculate” as to their outcome and that “the suspicions weighing on the interested parties do not suffice to justify” the separation either (§83). The Court thus impugns the facts on the ground that they have not yet brought a criminal punishment, although the facts are established. Finally, the Court reproached the Italian authorities for the fact that the child had not had any official identity for more than 2 years, without indicating that this situation firstly resulted from the wrongdoings of the applicants. For these reasons, the majority of judges are “not convinced of the adequacy of the elements relied on by the authorities in order to conclude that the child should be taken in care by social services” and holds there has been a violation of the right of the couple to respect for their family life (§82-86). In doing so, it does not examine the foundation of the main ground invoked
by the government: the protection of the child (§66).
Thus, the right of the applicants to respect for their family life is violated by the non respect for the best interest of the child; a child who is not party to the procedure and with regard to whom the applicants have neither biological nor legal ties, only a past factual link, illegally established. The applicants thus draw their right from an illegal factual
situation which they created themselves. The law yields before the fait accompli. Moreover, even though the Italian government emphasises that the tangible damage to the applicants had not been demonstrated (§94), the Court grants them €20,000 (a figure usually allocated in cases of death) without specifying the damage. It probably entails
having “lost a child” and ultimately rests on the idea of similarity of interest between the buyers and the child, supported by the affirmation that they shared a common family life. Yet, nothing exists to confirm this similarity of interest. The Court bases its reasoning on the unproven premiss that it conforms to the interest of the child to be raised by his buyers, which the Italian government contests in underlining that “the child has the right to live in a ‘legitimate and peaceful’ family environment” (§94). It is not equivalent to be raised by those who, whatever their intentions, obliged you to be born an orphan in order to buy you, and an adoptive family who legally brought you into their home.
Thus, at no moment did the Court consider the irreparable violence inflicted on the child or the situation of the gamete sellers and the birth mother. Besides, the Court rejected the application for third party intervention by a Russian association, which asked for authorisation to expose the social reality of surrogacy from the point of view of the gamete sellers and birth mothers.
How can this voluntary ignorance of the circumstances of the birth of the child and the refusal to take it into account in the assessment of his best interest be explained? Perhaps because the Court sets down as a principle that: “it is necessary that a child is not disadvantaged by the fact that he was brought into the world by a surrogate mother”
(§85). Such a principle is benevolent but impossible as surrogacy in itself harms the child-object of the contract. It additionally prevents from considering how the child is effectively damaged: cut off from his roots, from his biological filiation, sold, brutally separated from the woman who bore him for nine months, and handed over to an ageing
couple, circumstances which the Court abstained from raising in the present case. After having judged that the separation was not in the interest of the child, the Court indicates that the return to the sponsor couple is no more in his interest and that he shall stay with his foster family. After having admitted the family life between the applicants
and the child as a first fait accompli, the Court yields before a second – the separation – in order to take into account the ties woven with the foster family.
2. Violation of subsidiarity
In the Mennesson case, the Court had repeatedly declared its respect for the legislature, the principle of the margin of appreciation and the absence of consensus on surrogacy. Nothing of which was mentioned in Paradiso, the Court does not even recall that the national authorities are in principle better positioned than the international judge to
appreciate the situation, or that the legislature enjoys a wide margin of appreciation. It observes that “the Court should (…) be satisfied that in the case at issue, circumstances exist to justify the withdrawal of the child” (§74). Therefore it effectively takes the position of a fourth instance, since it is its own evaluation of facts in the case which is decisive – without even having seen the child or having heard an expert. As was outlined by judges Raimondi and Spano in their dissenting opinion, there was not “any reason to overturn the evaluation of the Italian judges (…) The majority substitutes its own evaluation to that of the national authorities, in this way jeopardising the principle of
subsidiarity and the doctrine of the “fourth instance”” (§13).
Moreover, as highlighted by the two judges, this judgment “in substance amounts to denying the legitimacy of the choice of the State not to recognise any legal effects to surrogacy. If it suffices illegally to create a link with a child abroad for national authorities to be obliged to recognise the existence of a ‘family life’, it is evident that the
freedom of States to not recognise legal effects to surrogacy – a freedom recognised by the case law of the Court (…) – is reduced to nothing” (§15). It is also the analysis of Frederic Sudre (“La GPA, non mais…”, JCP G. n°7, February 16th 2015,194) which states that the judgment “amounts, more or less, to place the State which prohibits
surrogacy within its territory under an obligation to recognise the existence of a ‘family life’ derived from surrogacy practiced abroad” (liberal translation). There is definitely “a chain of events” in case law driving towards the freedom of surrogacy (“Trois questions à… Muriel Fabre-Magnan”, http://www.etat-civil.legibase.fr, Newsletter n°53 March 2nd 2015).
In conclusion, a simple question remains: in such a ‘lamentable’ case (A. Batteur, L’Essentiel Droit de la famille et des personnes, March 15th 2015 n°3, p.1), whereas so many reasons justified an opposite conclusion, what was the reason for condemning Italy, if not to achieve neutralisation of the prohibition of surrogacy? Can the ECHR be blamed for imposing surrogacy? It is true that the Court does not have the vocation to defend society and its interests against individuals: on the contrary, it has been conceived for the protection of individuals and their freedom against society. Therefore every individual action, even illegal, becomes legitimate as soon as the Court can see a liberty there, which in this case is artificial procreation (ECHR 28 August 2012, Costa and Pavan v.
Italy, Ap. 54270/10). The problem here is that the social prohibition of surrogacy does not aim at tormenting individual freedom in its desire for a child, but to protect children and the persons employed to produce them.