Leiden Law Blog

What About the Children? Critical perspectives in the light of a new European judgment on surrogacy.

Posted on by Simona Florescu in Private Law
What About the Children? Critical perspectives in the light of a new European judgment on surrogacy.

Surrogacy has become as of late one of the hot issues before the European Court of Human Rights (the ‘ECtHR’). Recent judgments (see for example the cases of Mennesson and Labassee v. France) have spurred debates on the role the Court has to play in this essentially controversial area or the weight to be given to the various competing interests. Claire Achmad, in her blog post of 28 July 2004, welcomed what she deemed a child friendly approach of the Strasbourg Court.

On 27 January 2015 the Court delivered yet a new judgment on surrogacy in the case of Paradiso and Campanelli v. Italy and other cases are currently awaiting judgment. All these cases have been lodged by the intended parents in their own name and on behalf of their children. In the Mennesson and Labassee cases the Court did not find violations of Article 8 (right to private and family life) in respect of the parents but did find a violation in respect of the children. The most recent case of Paradiso and Campanelli v Italy, if anything, is an indication of the Court’s confusion as to the role of children in proceedings. But first the facts:

The case concerned an arrangement between two Italian intended parents who, via a company, successfully implanted ‘their’ embryos into the uterus of a Russian surrogate mother. The implantation took place in Russia, and there was no genetic link between the Russian mother and the baby. After the birth of the baby, the applicants were registered as the legal parents in Russia and they travelled with the baby to Italy with the intention of registering him as their son. The Italian authorities refused the registration and initiated criminal proceedings against the applicants for fraud. The female applicant admitted that she was not the biological mother of the baby and it turned out, after DNA testing, that the legal father did not have any genetic link to the child either. The applicants spent between 6 to 8 months with the baby before the Italian authorities placed the child in a children’s home for adoption. Also, despite a previous declaration that the applicants had been fit to adopt, in view of the fraud committed and its impact on Italian public order, the Italian authorities withdrew this authorisation to the effect that the applicants were denied the possibility to adopt the child.

The applicants complained in their own name and on behalf of the child of the impossibility to obtain the recognition of the filiation obtained in Russia. The Court dismissed the application on behalf of the child for lack of standing, noting that the applicants did not have any biological link to the child and that they did not and could not represent him before domestic courts. The Court did find however that there had been family and private life between the applicants and the child and that the domestic courts did not provide relevant and sufficient reasons for interfering with the family life. In particular the Court criticised the Italian authorities’ decision to separate the child from the applicants. Among the reasons put forward in support of finding a violation was that the child was not issued with identity papers for more than two years and that, as such, the child’s right to an identity as provided under Article 7 CRC had been breached.

Despite the outcome which in itself is positive in that the Strasbourg Court takes into consideration the rights of the child, I believe this judgment is problematic for several reasons. I will only discuss here the issues relating to standing. The Court declined the child standing in the proceedings as the applicants did not have any genetic link to the child and that they could not represent him in the domestic procedure. However, the majority judges did not have any problem in assessing the facts of the case from the perspective of an individual, i.e. the child, who is not a party to the proceedings. It is possible to find arguments for such an approach when it comes to the best interests of the child, which is also an interpretation principle and not only a self standing right. I think however this path becomes more problematic for self standing rights. How can the Court find a breach of Article 7 CRC (the right of a child to identity) without this amounting to extending the effects of the judgment beyond the parties to the procedure? And is there any difference in the scope of the Court’s review between cases where children are parties to the proceedings as opposed to cases where they are not? If not, then why did the Court go to the trouble of denying the child standing in the case? In view of the number of cases involving children I believe it is high time the Strasbourg Court clarifies its position.

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