Authored By: Sapnarao Sharma
University of Aberdeen
Abstract
This article examines the case of Paradiso and Campanelli v. Italy and its implication on cross-border surrogacy. The case involved two elderly Italian nationals who resorted to a cross-border surrogacy arrangement in Russia and subsequently became the legal parents of the child in Russia. Nevertheless, they were denied legal recognition of parenthood in Italy. This was due to issues of family life and competing interests that were raised causing legal uncertainty for cross-border surrogacy arrangements.
Introduction
Cross-border surrogacy arrangements create legal complexities in areas such as parental recognition, human rights, and ethical considerations in States where such practices are prohibited. This landmark case demonstrates European surrogacy law on how national restrictions have the capacity through a wide margin of appreciation to narrow the intended parents’ right to family life where there is an absence of genetic link to the child.
This article critically examines the legal complexities created by the Court’s assessment of the justified interference by the State and the de facto family life in cases where there is a lack of a genetic link.
Facts of the case
The applicants, Ms. Paradiso, and Mr. Campanelli, are Italian nationals who, after years of attempting to adopt, resorted to assisted reproduction techniques (surrogacy) with the assistance of a Russian woman (the surrogate mother) under a Russian surrogacy agency (Rosjurconsulting).[2] Ms. Paradiso travelled to Moscow and handed in the seminal fluid of Mr. Campanelli. After this, they entered into a gestational surrogacy arrangement, as two embryos were implanted in the surrogate mother after a successful in vitro fertilisation.[3] This meant that there were to be filiation ties between the child and Mr Campanelli.
Following this, a child was born, and the surrogate mother gave written consent for the child to be registered as the child of the applicants. This was then registered by the Registry Office in Moscow, where the Russian birth certificate showed that the applicants were the legal parents of this child.[4]
Nonetheless, when seeking to register the birth of the child in Italy, the request was refused on the ground that the certificate contained false information due to a mistake of the clinic. Genetic testing also confirmed that there was no genetic link between the child and Mr Campanelli and as a result, the child was considered to be in a state of abandonment. This led to the removal of the child from Ms. Paradiso and Mr. Campanelli, who was then placed in foster care and later adopted.[5]
The applicants then lodged a complaint of breach of Article 8[6], the right to respect for their and the child’s private and family life.
Impact of the case
The de facto family life
The European Court of Human Rights held there was an interference with the applicant’s right to private and family life but considered the margin of appreciation given to the Italian authorities to justify the breach given that surrogacy is prohibited in Italy.[7] Despite the illegality of surrogacy under Italian law[8], the court considered that it was possible for a de facto family relation to exist based on the personal ties formed between the child and the applicants during the six months that they were together.[9]
However, the court was reluctant to push this approach because the duration of the relationship of limited and there was no genetic link of the child to the applicant – this view was also the favoured opinion of Beaumont and Trimmings.[10] In the case of Moretti and Benedetti v Italy [11], 19 months were considered sufficient to establish a de facto family life – though this was a case between foster parents and a child. Nonetheless, the Paradiso and Campanelli case has highlighted that where there are no genetic links to the child, it is possible for the court to establish family based on the duration of cohabitation[12], though it seems that the relationship must last for more than six months.
The legitimate aims of the State
In order to justify the interference with the Article 8 rights of the applicants, there must be a legitimate aim of the Italian authorities to justify it. In this case, the court held the interference to be justified as the conduct of the applicants in engaging in a surrogacy arrangement was contrary to Italian law. As a result, the actions of the Italian government were necessary and proportionate to deter future illegal conduct and to protect the best interest of the child.[13] Nonetheless, there were arguments that suggested that the removal of the child was disproportionate to the best interest of the child – the removal of the child should be an extreme measure of last resort. On the other hand, when taking into account the competing interests of all parties involved, that is, women, children, the State, and applicants, the court is more inclined to favour the position of the State as it aims to deter illegalities that are contrary to their public policy. Moreover, to protect both women and children from the commercial nature of cross-border surrogacy that ultimately commodifies them.[14]
Discussion
It is clear that from the judgement of this case, the Court has narrowed the interpretation of family life and in turn has reduced its protection of it in terms of Article 8, right to private and family life. This is especially true where there are no genetic ties to any of the applicants involved in cross-border surrogacy arrangements. This has resulted in the interpretation that certainty of parentage is a required factor to establish a de facto family life. This wide margin of appreciation given to the State creates an emphasis on strict regulations which makes it hard for applicants who intend to create a family life without any genetic links to the child to claim parental rights.
In addition, the Court seemed to fail to take into account that it was only by mistake of the clinic that caused Mr Campanelli to not have any genetic link with the child. Their bona fide intention of having a child with the view of establishing a family should have been considered by the Court. Their actions, although illegal under Italian law, should have been a positive indication of a desire to create a family life. Nevertheless, it is understandable that the Court made this decision as it should not narrow the margin of appreciation of the State on matters of public policy, especially on those that aim to protect the best interest of the child and women by deterring the commodification nature of cross-border surrogacy.
Conclusion
This case creates an emphasis on the restrictive approach to surrogacy to protect legal certainty by favouring genetic links to the child over personal relationships that are formed over the passage of time. The scope of the creation of family life is limited by giving the State a wide margin of appreciation that enables them to enforce public policy against surrogacy and against legal parentage that was created abroad. This creates a risk of legal uncertainty for the intended parents and poses a threat to the best interest of the child by disallowing them to be in a stable family environment. With that being said, there is a need for the State to have discretion in matters such as public policy for the protection of all parties and to prevent any illegalities. That said, there should be greater flexibility in recognising this de facto family bond where there are clear intentions of establishing it and there should be greater fostering that balances the interests of public policy with the rights of the intended parents and the child.
Reference(S):
Primary Sources
European Court of Human Rights, Article 8, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 1950
Parliament Italian, ‘ Rules on medically assisted procreation’ (Official Gazette 2004). https://www.iss.it/documents/20126/6898329/Act+Feb.+19%2C+2004+%2C+No+40.pdf/276cf272-69b1-4a3d-bf92-a4d9d6c54bad?t=1656076081602 accessed 26 May 2025
Cases
Moretti and Benedetti v Italy (2010) App no 16318/07 (ECtHR)
Paradiso and Campanelli v Italy (2017) App no 25358/12 (ECtHR)
Secondary Sources
Beaumont P and Trimmings K, ‘Recent Jurisprudence of the European Court of Human Rights in the Area of Cross-Border Surrogacy: Is There Still a Need for Global Regulation of Surrogacy?’ University of Aberdeen, Working Paper No 2016/4, 2016 <https://www.abdn.ac.uk/law/documents/CPIL_2016-4.pdf> accessed on 26 May 2025
European Court of Human Rights, ‘The authorities’ removal of a child born from gestational surrogacy who had no biological ties to the intended parents was not contrary to the European Convention on Human Rights’ (Press Release, 24 January 2017), pg. 2 accessed on 25 May 2025
Iliadou M, “Surrogacy and the ECtHR: Reflections on Paradiso and Campanelli v Italy” (2018) 27 Medical Law Review 144 <https://academic.oup.com/medlaw/article-abstract/27/1/144/4898108?redirectedFrom=fulltext&login=true#no-access-message#no-access-message#no-access-message#no-access-message> pg. 147 accessed on 25 May 2025
Surrogacy in Italy: A ‘Universal Crime’” (UIA, January 8, 2025) <https://www.uianet.org/en/news/surrogacy-italy-universal-crime> accessed on 26 May 2025
[1] Paradiso and Campanelli v Italy (2017) App no 25358/12 (ECtHR)
[2] ibid, paras 10-11.
[3] ibid.
[4] ibid, paras 14 -16.
[5] European Court of Human Rights, ‘The authorities’ removal of a child born from gestational surrogacy who had no biological ties to the intended parents was not contrary to the European Convention on Human Rights’ (Press Release, 24 January 2017), pg. 2 accessed on 25 May 2025.
[6] European Court of Human Rights, Article 8, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 1950.
[7] Surrogacy in Italy: A ‘Universal Crime’” (UIA, January 8, 2025) <https://www.uianet.org/en/news/surrogacy-italy-universal-crime> accessed on 26 May 2025.
[8] Parliament Italian, ‘ Rules on medically assisted procreation’ (Official Gazette 2004) <https://www.iss.it/documents/20126/6898329/Act+Feb.+19%2C+2004+%2C+No+40.pdf/276cf272-69b1-4a3d-bf92-a4d9d6c54bad?t=1656076081602> accessed 26 May 2025.
[9] Paradiso (n 1), para 148.
[10] P Beaumont and K Trimmings, ‘Recent Jurisprudence of the European Court of Human Rights in the Area of Cross-Border Surrogacy: Is There Still a Need for Global Regulation of Surrogacy?’ University of Aberdeen, Working Paper No 2016/4, 2016 <https://www.abdn.ac.uk/law/documents/CPIL_2016-4.pdf> accessed on 26 May 2025.
[11] Moretti and Benedetti v Italy (2010) App no 16318/07 (ECtHR).
[12] M Iliadou, “Surrogacy and the ECtHR: Reflections on Paradiso and Campanelli v Italy” (2018) 27 Medical Law Review 144 <https://academic.oup.com/medlaw/article-abstract/27/1/144/4898108?redirectedFrom=fulltext&login=true#no-access-message#no-access-message#no-access-message#no-access-message> pg. 147 accessed on 25 May 2025.
[13] Paradiso (n 1), para 177.
[14] ibid, (n 11) pg. 149 accessed on 27 May 2025.
