European Court of Human Rights rules against surrogacy

Court overturns previous ruling against Italy in surrogacy dispute.

Jan. 24, 2017

European Court of Human Rights. Photo by Adrian Grycuk (used under creative commons attribution-share alike license).

STRASBOURG—On January 24, in the case Paradiso and Campanelli v. Italy, the Grand Chamber of the European Court of Human Rights ruled against the practice of surrogacy. By eleven votes to six, the Grand Chamber of the Court overturned a previous decision and held that the Italian authorities could legitimately remove a child illegally obtained by gestational surrogacy from the custody of adult sponsors who were biologically unrelated to the child. This decision could significantly influence the legal treatment of surrogacy in Europe.

“We are very happy with the decision of the Court which affirmed the need to protect the dignity of all persons involved in surrogacy practices. Surrogacy violates the dignity of both child and a mother and the law has to prevent this, especially when some parts of these practices may amount to human trafficking,” commented Hrvoje Vargić, World Youth Alliance Europe Director.

The case concerned the man and woman from Italy who entered a gestational surrogacy contract with a Russian woman. The child was conceived through in vitro fertilisation (IVF), and Italian couple had no biological relationship to the child. The surrogate was also biologically unrelated to the child. The agreement was made possible by a third party organization in Moscow for the price of €50,000.

Italian law prohibits surrogacy and recognizes surrogate mothers as the legal parent of the child. When the couple tried to register the child as their own in Italy upon their return, the authorities, determining that the child had no legal parents, decided that it was in the best interest of the child took custody of the child, who was then placed for adoption. 

A section of the Court ruled in an initial judgement in 2015 that the Italian authorities had violated Article 8 of the European Convention on Human Rights (right to private and family life) and ordered Italy to pay the couple €30,000. The Court found at that time that the withdrawal of the child had undermined respect for their private and family life. It also found that by refusing to register the parties in the surrogacy agreement as the child’s parents, Italy had deprived the child of certainty regarding his citizenship and identity.

The Court has now overturned its prior ruling, stating that “a family life did not exist between the applicants and the child” despite the “existence of a parental project and the quality of the emotional bonds.” The decisive reasons were the short duration of their relationship with the child, the uncertainty of the ties between them from a legal perspective, and the absence of any biological tie between the child and the applicants.

The Court decided that authorities had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others, particularly the involved child. It also found that the child will not suffer serious of irreparable harm from the separation and that the authorities had struck a fair balance between the different interests at stake. Consequently, the Court held there was no infringement of the right to respect for private and family life.

“It is a great decision for the protection of vulnerable children and women from trafficking which is spreading more and more under the cover of parental projects and surrogacy practices,” said Antoine Mellado, WYA Europe Director of Advocacy. “It’s reassuring for us to see that the processes in Europe are going in the direction of protecting the human dignity and preventing the commodification of both mothers and children through surrogacy agreements. WYA worked closely with the representatives of the Parliamentary Assembly of the Council of Europe who rejected the legalization of surrogacy in November last year. Now we are thrilled to see that the European Court of Human Rights also recognizes the need to protect the rights of the children involved in surrogacy practices.”

Want to learn more about surrogacy? Read WYA’s White Paper (A4 | US Letter) or check out our fact sheet (A4 | US Letter) for more information.