By Elena Ignovska, Assistant professor, University Ss. Cyril and Methodius, Faculty of Law, Skopje, Macedonia.
Assisted Reproductive Technologies (ART) undoubtedly triggered an earthquake in the concept of parenthood, resulting in a fragmentation of the possible parents: genetic/biological, gestational, factual and legal. Their initial objective was to enable infertile couples to parent genetically related progeny. Yet, they have recently been used in ways that are detached from that initial purpose, which may be problematic from the viewpoint of national family law. A typical example of that is the case of Paradiso and Campanelli v. Italy which demonstrated the opposite intention: using foreign assistance in reproduction for purposes of parenting a non-gestational and genetically unrelated child. The issue before the Court concerned a removal of the child from his intended parents as a result of a (non)recognition of a foreign birth certificate.
The case deals with a legal battle of an elderly married couple who could not conceive for years (naturally or with assistance of in vitro fertilization), nor could they adopt a child in Italy (due to shortage of children eligible for adoption). Finally, they decided to hire a company that brought them to a Moscow-based clinic for reproductive tourism, providing them with a service that was illegal in Italy but legal in Russia: conceiving an embryo from anonymous sperm and oocyte donation, carried through pregnancy and delivered by a paid surrogate woman. Even though the outcome was such, the couple claimed that their intention had been that the spouse would be genetically related with the child but due to „unknown reasons“ (of which they found out only once they undertook a genetic test in Italy), the child’s genetic provenience was “unknown“. Due to the non-existence of a genetic link between the spouse and the child, the Italian authorities started a formal investigation for “altering civil status” and forgery. The State Counsel’s Office asked for proceedings to declare the child as abandoned and free for adoption. While the applicants protested against such measures and asked at least to be able to adopt the child, the Youth Court decided to remove the child from them. The child was placed in a children’s home in a place unknown to the applicants and had no official identity for more than 2 years. Afterwards he received another name and birth certificate and was placed with a foster family which had an intention to adopt him. The couple was now facing double illegality: forgery of the birth certificate, on the one hand, and consequently bringing a child to Italy that was not theirs, on the other. The Italian authorities considered it necessary to take rather severe urgent measures to remove the child from the intended parents regardless of their not yet proven criminal liability.
The European Court of Human Rights (ECtHR) with its judgment delivered on 27 January 2015 judged that there was an interference with the applicants’ private and family life enshrined in art. 8 of the European Convention of Human Rights (ECHR). Nevertheless, the Court also considered that the breach resulted from a justified and not arbitrary concern of the Italian authorities to protect the public interest and protect a child which they considered as abandoned and endangered. The Court considered that the mere fact that the child would have developed closer emotional ties with his intended parents had he stayed with them for longer was not sufficient to justify his removal. On the contrary, the breach of art. 8 was precisely due to the fact that the national authorities interrupted the relationship from developing. Given that the child had undoubtedly developed emotional ties with the foster family with whom he had been placed, the finding of a violation in the applicants’ case could not be understood as obliging the State to return the child to them. The Court found no violation of articles 6 and 16 of the ECHR. Finally the Court found that only partial reparation had to be granted to the applicants (art. 41 of the ECHR).
The case was later referred to the Grand Chamber which delivered a substantially different judgment on 24 January, 2017. The Grand Chamber considered the immediate and irreversible separation of the child from his parents to be tantamount to an interference with their private life (right to personal development through their relationship with the child). Nevertheless, it also considered that the opposite scenario would have been tantamount to legalizing the situation created by them in breach of important rules of the Italian law. As a result, the Court decided that the national interests to prevent illegality and protect public order prevailed over the applicants’ right to private life and concluded that there had been no violation of art. 8 of the ECHR.
The competing interests at stake
The Italian courts had established the absence of any genetic link between the applicants and the child which led them to the wrong conclusion that the birth certificate had inaccurate content because of fraudulent actions of the applicants. Namely, under the Russian law it was possible to register a child regardless of the genetic relatedness with the intended parents (at the time when the applicants concluded the surrogacy agreement – par. 74). Even more, the criminal liability of the applicants had not been proven before the national courts ordered separation of the child from them. Similar, yet different situations (fathers were genetically related with children that had not been taken away from the intended parents) were at stake in Mennesson v. France and Labassee v. France. The Court considered that in those cases, the issues at stake were: recognition of a foreign birth certificate and the legal parent-child relationship. The present case, however, concerned the measures taken by the Italian authorities that resulted in the separation.
Both French cases are very important because they do not impose an obligation on the national States to regulate surrogate agreements nor to recognize them for the sake of the parents’ family life, but they rather impose the very same obligation for the sake of the children’s private life. In the Italian case, the margin of appreciation of the national law prevailed over the best interests of the child principle (as perceived in both French cases – the interests of the children to be registered by way of priority and not to be taken away from their parents with whom they share a family life). This different treatment is because of the absence of the genetic link between the child and Mr. Campanelli that resulted in, initially, non-recognition of the birth certificate, later, in removal of the child while proclaiming him as abandoned, and lastly, in disabling the applicants to act on “their” child’s behalf during the Strasbourg proceedings. This is in contrast with recent ECtHR reasoning that slowly but surely recognizes greater protection of de facto families instead of merely families linked through genetics.
The issue was whether the legislative provisions as applied in the case struck a fair balance between the competing public and private interests involved. The public interest goes against protecting a practice that creates children for adoption purposes and pushes women in poor countries, for subsistence reasons to paid surrogacy agreements which expose them to health risks. Thus the State is entitled to further legitimate aims such as the protection of children, health and the rights and freedoms of others. Nonetheless, it remains to be ascertained whether, in such a situation, the measures taken in respect of the child – in particular, his removal and placement under guardianship – can be regarded as proportionate, namely whether the child’s interests were taken into account sufficiently by the Italian authorities. In the case of Wagner and J.M.W.L v. Luxembourg, the national authorities did not recognize the legal parent-child relationship established abroad on the ground that it was contrary to the public order, without however removing the child from the family setting to interrupt family life as that would have been an extreme measure. Such a measure can only be justified in order to protect a child who is faced with immediate danger. In particular, the Court requires a fair balance to be struck between the competing interests – those of the child, of the two parents and of the public order.
The evolving concept of parenthood
In recent years, the concept of family life has evolved in a way to manifest rather a functional than a genetic reality, with the main emphasis placed on the protection of children’s interests. The fundamental principle of filiation laws is legal certainty for protection of already established families. The predominant genetic criterion is losing ground to the social mandate as the determining factor for what constitutes a legal family life. For these reasons, the time limits for challenging parenthood tend to legally secure the position of the already established parent who “does” the parenting when confronted with the person who merely “is” a genetic contributor. The legal filiation’s developments manifest an obvious paradox: on the one hand, there is an increasing emphasis on the genetic truth, while, on the other hand, parental rights and responsibilities are increasingly granted to persons other than the genetic parents. Inevitably, parental links exist through genetics and this fact should not be hidden. Moreover, parenthood is a legal concept that develops throughout time among persons who have the intention to share a life together. Nevertheless, it could be expected that imported and uninvited intrusions, sometimes even of “experimental practices” contrary to the national legal context, will raise serious concerns regarding the public order.
In its first judgment it is unclear what the Court meant to accomplish when it recognized a breach of art. 8 for the applicants (and not for the child as in both French cases), while at the same time concluding that the child had already developed a familial relationship with the foster family and therefore not obliging the country to return the child to the intended parents. The absurdity of it is that the applicants “won“the legal battle, but did not get what they started the battle for – custody of the child they considered theirs. Even more, the Court did not even consider whether the child’s right to private and family life had been infringed due to the removal, thereby neglecting what should have been examined by way of priority. In its later judgment, the Court made it clearer: the couple lost the battle completely. Thus the ECtHR allowed a wide margin of appreciation to the national authorities on issues of trans-country surrogacies concerning children conceived by sperm and oocyte anonymous donations.
While the judgment was received with satisfaction by the majority of judges in the case (e.g. Judge Dedov stating that “this is the first step towards greater emphasis on values rather than on the margin of appreciation in ‘ethical’ cases”), there were also dissenting opinions. They were mainly concerned with the following issues: 1. The distinction between “legitimate” and “illegitimate“ families, that in the present case played major role for the Court to hold that family life did not exist, had already been rejected by the Court many years ago (e.g. in the case Marckx v. Belgium). 2. The proclamation of the child as being “abandoned “ by the Italian authorities while being fully taken care of by the intended parents fails to recognize the full notion of parenthood (that primarily encompasses factual parenting), 3. The question is not whether Italian law should allow surrogacy agreements, but rather how the Italian authorities should deal with a factual situation in Italy stemming from earlier events that took place in a foreign country.
Anyhow, the Court did not consider whether the removal had infringed the child’s private and family life, in the light of art. 7 of the Convention on the Rights of the Child that urges for an immediate registration after birth in order to ensure the child’s placement, security and family stability over time. Thus it is not clear if the child’s best interests were taken duly into account. Now, it will be up to the Italian authorities to decide which measures are required in order to prevent future breaches of the Convention. However, Italian attorney Schuster is optimistic: “I do not think this judgment will be followed by Italian courts. A genetic link to establish parenthood is not always necessary. Italian law on this point was misrepresented to the Court. Italy is still struggling as to how to deal with surrogacy, but we have moved forward in understanding the phenomenon and protecting the child.”
On the whole, this judgment sends a discouraging (not to say intimidating) message to couples who cannot access reproductive technologies in their home countries and wish to travel for reproductive purposes elsewhere, since the later domestic recognition may be refused for being against the positive law and the “proclaimed” public order.
It will be interesting to see how the Court will deal with similar pending cases in the near future and whether it will reconsider its arguments (Laborie v. France (no. 44024/13), Foulon v. France (no. 9063/14), and Bouvet v. France (no. 10410/14)).