STRASBOURG – Today, the Grand Chamber of the European Court of Human Rights ruled against surrogacy in the landmark case Paradiso and Campanelli v. Italy. The decision will have major implications for family law across Europe. It is now a binding interpretation of the European Convention on Human Rights covering all 47 Member States of the Council of Europe.
“Surrogacy exploits women and treats children as commodities. In its ruling today, the European Court of Human Rights refused an attempt to aggressively redefine the right to family life. Children are entitled to know their parents and most surrogacy agreements render this impossible, as this case perfectly illustrates,” said Robert Clarke, Director of European Advocacy
Court rejects the sale of children
The case involved an Italian man and woman who entered into a commercial surrogacy agreement with a woman in Russia for the purchase of a child who was conceived through IVF (in vitro fertilisation). The couple paid 50,000 EUR. The child was born in February 2011 and subsequently taken to Italy where the couple attempted to have the infant registered as their own child. The child had no biological relationship to the couple and the surrogacy agreement was illegal under Italian law. The authorities charged the couple with “misrepresentation of civil status” regarding the parentage of the child, and the Italian courts held that the child had been abandoned and must therefore be taken into care.
In January 2015 the Second Section of the Strasbourg Court ruled that the Italian authorities had violated Article 8 of the Convention (right to private and family life) by refusing to register the parties in the surrogacy agreement as the child’s parents and thereby depriving him of certainty regarding his citizenship and identity.
On 24 January 2017, overturning the 2015 ruling, the Grand Chamber of the Court held that “[t]he right to respect for ‘family life’ does not safeguard the mere desire to found a family.” In his Concurring Opinion, Judge Dedov added, “[H]uman trafficking goes hand in hand with surrogacy arrangements. The facts of this case clearly demonstrate how easily human trafficking might be formally represented as (and covered by) a surrogacy arrangement. However, the phenomenon of surrogacy is itself quite dangerous for the wellbeing of society. I refer not to the commercialisation of surrogacy, but to any kind of surrogacy.”
“Fortunately, today, the European Court of Human Rights has made it clear that commercial surrogacy arrangements violate the rights of children and women. This decision is in line with growing international criticism of the deeply troubling issues which arise in cases of surrogacy. Both the European Parliament and the Parliamentary Assembly of the Council of Europe have recognized that the surrogacy industry exploits women and engages in activity which amounts to the trafficking of children,” said Lorcán Price, Legal Counsel for ADF International, who is based in Strasbourg.