ECtHR Finds Violation of Respect for Family Life in Surrogacy Case

European Court of Human RightsCredit: Council of Europe
European Court of Human Rights
Credit: Council of Europe

On January 27, 2015, the European Court of Human Rights issued its judgment in Paradiso and Campanelli v. Italy, reaffirming the State obligation to prioritize the best interest of the child when determining guardianship arrangements. See ECtHR, Paradiso and Campanelli v. Italy, no. 25358/12, Judgment of 27 January 2015 (French only). The Court held that the State had violated Article 8 (respect for private and family life) of the European Convention on Human Rights, reasoning that the State had not duly considered the nine-month-old child’s best interest when it placed him in a children’s home. The European Court stated that the removal of a child from his or her family setting is an “extreme measure” that would only be justified if the child were in immediate danger, and that public policy considerations did not adequately justify removal. The Court ordered the State to pay the applicants 20,000 euros for non-pecuniary damages and 10,000 euros for costs and expenses. [ECtHR Press Release]

Facts of the Case

Ms. Donatina Paradiso and Mr. Giovanni Campanelli are Italian citizens who were unable to conceive a child through in vitro fertilization. Italian law prohibits surrogacy arrangements, so the couple arranged for a surrogate mother to have the baby in Russia. The child was born on February 27, 2011, but the Italian court would not register the child’s birth on the grounds that his birth file contained false information because it did not disclose the surrogacy arrangement. In May 2011, the couple was charged with “misrepresentation of civil status” and with violating adoption legislation, since the adoption authorization they received in 2006 did not authorize them to adopt a young child. In August 2011, a DNA test revealed that Mr. Campanelli was not the biological father, and the State court held that the child should be immediately removed from the couple because there was no biological relationship and there were doubts as to their ability to raise the child.

The State placed the baby in a children’s home, without informing Ms. Paradiso and Mr. Campanelli of the child’s whereabouts. The State affirmed its decision not to register the child’s birth certificate on the grounds that registering inaccurate birth certificates is against public policy and the certificate incorrectly stated that Mr. Campanelli was the father. In 2013 the child was given to a foster family and the State court declared that Ms. Paradiso and Mr. Campanelli could not adopt the child since they were neither parents nor relatives. [ECtHR Press Release]

The applicants lodged a complaint with the European Court of Human Rights, alleging that the State’s removal of the child from their care and its refusal to acknowledge their relationship with the child violated their right to respect for private and family life under Article 8 of the European Convention on Human Rights.

Article 8 provides that there “shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest s of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Discussion of the Article 8 Violation

The European Court found the complaint to be admissible, recognizing the de facto family relationship between the applicants and the child based on the six months they had spent together. [ECtHR Press Release] The State alleged that the applicants wanted to have a child to resolve problems in their relationship, which “cast doubt on their child-raising and emotional capacities.” Since the applicants had violated international adoption law and Italian law regarding surrogacy arrangements, the State argued that it removed the child to end an unlawful situation. [ECtHR Press Release]

The European Court considers three elements when determining if State action violates Article 8, namely whether the State action: was in accordance with law, served a legitimate aim, and is necessary in a democratic society. See, e.g., ECtHR, Olsson v. Sweden, ECtHR, Plenary, Series A no. 130, Judgment of 24 March 1988, para. 59. The Court found the removal of the child to be in accordance with law and to serve the legitimate aim of preventing disorder, but found that the State’s action was not necessary in a democratic society.

The Court held that the State failed to properly balance the interests at stake, reasoning that removing a child from his or her family setting is an “extreme measure, which could be justified only in the event of immediate danger to the child.” [ECtHR Press Release] Specifically, the tribunal took issue with the Italian court’s reasoning that the couple was unfit to adopt the child because they had contravened the national adoption legislation, despite the fact that they had previously been authorized to adopt. The European Court held that the removal was not justified because the best interest of the child outweighed public policy considerations regarding surrogacy and adoption.

However, the Court held that the finding of a violation did not require the State to return the child to the applicants, because he has likely developed emotional ties with his foster family. [ECtHR Press Release]

Similar Cases before the Court

In the Paradiso and Campanelli decision, the European Court referred to Wagner and J.M.W.L. v. Luxembourg, where it had previously held that the State violated Article 8 of the Convention because its courts refused to recognize a mother and her daughter as family because Luxembourg law did not recognize single-parent adoptions. There, the mother had lawfully adopted her daughter in Peru, where the state legislation recognized their family relationship. See ECtHR, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, Judgment of 28 June 2007, paras. 117–36. The Court considered that although single-parent adoptions were found to violate public policy in Luxembourg, it was in the best interest of the child for the relationship to be acknowledged. See id. at paras. 143–46.

In Olsson v. Sweden, the State had removed children from the parents on the ground that they were incapable of providing adequate care at the time. See ECtHR, Olsson v. Sweden, ECtHR, Plenary, Series A no. 130, Judgment of 24 March 1988, paras. 75–77. The Court held that the decision to remove the children was in accordance with the Convention but that the implementation of the decision to remove the children violated Article 8 because it should have been a “temporary measure, to be discontinued as soon as circumstances permitted, and any measures of implementation should have been consistent with the ultimate aim of reuniting the Olsson family.” See id. at para. 81.

Additional Information

The European Court of Human Rights decides complaints against the 47 countries of the Council of Europe. To learn more, visit IJRC’s Online Resource Hub.