Title:
Paradiso and Campanelli v. Italy
Court:
European Court of Human Rights
Date:
27 January 2015
CRC Provisions:
Article 7: Name and nationality
Other International Provisions:
European Convention on Human Rights, Article 8: (right to respect for private and family life)
Case Summary:
Background:
The applicants are Italian nationals who entered into a surrogacy agreement with a woman in Russia though a Russian surrogacy agency. The child, who was conceived through an IVF (in virto fertilisation) procedure, was born in February 2011. The surrogate mother signed an attestation that the baby was the genetic child of the applicants and the child was issued a Russian birth certificate naming the applicants as parents and without any indication that the child had been born through a surrogacy.
When the applicants returned with the child to Italy, they unsuccessfully tried to register the birth. The Italian Consulate in Moscow informed the Italian authorities that the file on the child’s birth contained false information. In May 2011, the applicants were charged with “misrepresentation of civil status” and violation of the adoption legislation which prohibits the adoption of such a young child. The prosecutor at the Campobasso juvenile court opened proceedings to free the child for adoption, since, for the purposes of Italian law, he had been abandoned.
After it was revealed that neither parent was genetically related to the child, in October the same year, the juvenile court ordered that the child be removed from the applicants and placed under guardianship. The child was placed in a children’s home, and later foster care, with no contact with the applicants and no 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 and the lack of a biological relationship between the child and the applicants. The child received a new birth certificate indicating that he had been born to unknown parents.
The applicants complained to the European Court of Human Rights alleging a violation of their and the child’s right to respect for private and family life in Article 8 of the European Convention on Human Rights in that it was impossible to register the birth of a child born through surrogacy and that the child was removed from their care.
Issue and resolution:
Birth registration, parental care and surrogacy. The Court decided that there was a “family life” connection between the applicants and the child and that the Italian authorities had violated the applicants’ rights under the European Convention by removing the child.
Court reasoning:
The Court dismissed at the outset the complaint submitted in the child’s name, finding that the applicants did not have standing to act on the child’s behalf, given that the child had been out of their care for over two years and was in the process of being adopted by a different family under a different identity.
The complaint of alleged a violation of Article 8 in that it was impossible to have the child’s birth certificate registered in Italy was also dismissed, for failure to exhaust domestic remedies.
With regard to the complaint concerning the child’s removal and placement under guardianship, the Court, noting the existence of a de facto family life between the couple and the child, held that Article 8 was applicable in this case and declared this complaint admissible. The Court said that the notion of “family” encompasses de facto family ties and, although the period of time that the applicants spent with the child was relatively short, the fact that the applicants have behaved towards the child as parents indicates that a de facto family life existed between the applicants and the child.
The Court held that the removal of the child by the Italian authorities constituted an interference with their family life in breach of Article 8 because the authorities had not properly considered the balance between Italy’s public policy considerations, on the one hand, and the best interests of the child, on the other. However, the Court also noted that its decision should not be read to require return of the child to the applicants, as the child has no doubt developed a bond with the family with whom he has been living since 2013.
Joint Partially Dissenting Opinion of Judges Raimondi and Spano:
The two judges thought that a fair balance had been struck between competing public and private interests in this case and there was no reason to question the assessment of the Italian courts. In their opinion, where national courts are faced with difficult questions of balancing interests, the Court should restrain itself only to confirming that the assessment of the national judges was not arbitrary.
Excerpts citing CRC and other relevant human rights instruments:
as in full-text French decision:
85. Enfin, la Cour note que l’enfant a reçu une nouvelle identité seulement en avril 2013, ce qui signifie qu’il était inexistant pendant plus de deux ans. Or, il est nécessaire qu’un enfant ne soit pas désavantagé du fait qu’il a été mis au monde par une mère porteuse, à commencer par la citoyenneté ou l’identité qui revêtent une importance primordiale (voir l’article 7 de la Convention des Nations unies relative aux droits de l’enfant du 20 novembre 1989, entrée en vigueur le 2 septembre 1990, 1577 Recueil des Traités 3).
CRIN English translation:
Finally, the Court notes that the child received a new identity only in April 2013, which means he was non-existent for more than two years. However, it is necessary that a child is not disadvantaged because he was born to a surrogate mother, starting with citizenship or identity, which are of paramount importance (see Article 7 of the UN Convention on the Rights of the Child of 20 November 1989, entered into force on 2 September 1990, 1577 Treaty Series 3).
Notes:
This case was overturned by the Grand Chamber of the European Court of Human Rights in January 2017.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. Article 3 of the Convention requires that the child’s best interests be a primary consideration in all decision concerning the child, including decisions regarding birth registration, guardianship and adoption. Furthermore, under Article 7 states have an obligation to ensure that children are registered and given a name “immediately after birth”.
Citation:
Paradiso and Campanelli v. Italy, Application No. 25358/12
Link to Full Judgment:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-150770
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.