Paradiso and Campanelli v Italy: Surrogacy Agreements and their Exploitation of Surrogate Mothers and Children in the EU

By: Kelly Kane

Article 8 of the European Convention on Human Rights provides that “[e]veryone has the right to respect for his private life and family life.”[1] Further, Article 8 prohibits “interference by a public authority with the exercise of” the right to private life and family life.[2] However, on January 24, 2017, the European Court of Human Rights determined that removal of a child from his adoptive parents was not a violation of this right to privacy and family life, even though the child had been with the adoptive mother for over 6 months.[3]

Case Background

Donatina Paradiso and Giovanni Campanelli are Italian nationals who were unable to conceive a child. After unsuccessfully attempting to conceive through in vitro fertilization, the couple enlisted the help of a Russian surrogacy company, Rosjurconsulting. The couple paid 50,000 euros for the surrogacy.[4] Paradiso travelled to Moscow where she delivered her husband’s seminal fluid to a clinic, and a child was conceived by a Russian surrogate mother and was later born in Moscow on February 27, 2011.[5] Donatina and Giovanni were registered as the baby’s parents in accordance with Russian law and the couple was listed as the baby’s parents on his birth certificate.[6] However, the couple gave no indication that the child was born via surrogacy.[7] Donatina remained in Russia with the baby until she returned to Italy on April 30, 2011.[8]

When Giovanni attempted to register the child’s birth certificate in Italy, the Italian Consulate in Moscow informed the authorities that the birth certificate contained false information.[9] Criminal proceedings were initiated against the parents, because under Italian law, “the person who gives birth to a baby is legally its mother, and use of surrogate mothers is illegal.”[10] The two were accused of “misrepresentation of civil status” concerning the paternity of the child, and the Italian courts held the child was abandoned and was later taken into foster care.[11]

Genetic testing that occurred in July 2011 established that Giovanni was not the child’s biological father,[12] but the child’s biological mother could not be traced.[13] The Italian registry refused to register the original Russian birth certificate, and ordered a new birth certificate be issued, specifying that the child’s parents were unknown.[14] The child was in a children’s home for approximately fifteen months, and was placed with a family that eventually adopted him.[15] In 2015, the lower courts determined that Italian authorities violated Article 8 by refusing to register Donatina and Giovanni as the baby’s parents on the birth certificate, and that authorities effectively deprived the baby of “certainty regarding his citizenship and identity.”[16]

European Court of Human Rights Decision

The Government appealed the case to the European Rights. Donatina and Giovanni to the Court that removal of the baby from their custody violated their Article 8 right to respect for private and family life. The couple relied on the fact that they developed “close emotional bonds” with the child because the baby had been with them for over half a year.[17] The Court nonetheless determined that there was no Article 8 violation and overturned the 2015 decision, because there was no biological relationship with either parent.[18] This absence of biological relationship was a determinative factor for the court. Although there is a right to respect for family life, Article 8 does not “safeguard the mere desire to found a family.”[19] The Court determined that the child would not “suffer grave or irreparable harm as a result of the separation” from Donatina and Giovanni.[20]  Removal of the child from Donatina and Giovanni was ultimately done with a view of protecting all children. The couple here bought a child that was not theirs, and authorities do “not want to see what amount[s] to a market in children being created.”[21] 

Impacts of the Decision

Paradiso and Campanelli v Italy has major implications for family and adoption law across Europe, because it is binding on all 47 signatories of the European Convention on Human Rights.[22]  The Court here took the firm stance that surrogacy is a form of human trafficking, and absent biological relationship between a parent and child in surrogacy agreements, there is no family under the Convention and Article 8 is not applicable.[23]

Surrogacy agreements similar to those in Paradiso are highly problematic, and lead to exploitation of surrogate mothers and the children they carry. Regardless of what their intentions were, Donatina and Giovanni purchased a child that was not theirs from a Russian woman for a substantial amount of money. Their actions were inherently exploitative of the biological mother and the child, and the child was deprived of his ability to learn the identity of his biological mother.

[1] European Convention on Human Rights, Article 8 http://www.echr.coe.int/Documents/Convention_ENG.pdf.

[2] Id.

[3] Press Release, ECHR 034 (2017), European Court of Human Rights https://www.asil.org/blogs/european-court-human-rights-rules-removal-child-born-surrogacy-intended-parents-not-rights.

[4] Surrogacy Judgment: Human Rights Court Says “No” to Commoditization of Women and Children, ADF International (Jan. 24, 2017), https://adfinternational.org/detailspages/press-release-details/surrogacy-judgment-human-rights-court-says-no-to-commoditization-of-women-and-children.

[5] Sarah MacDonald, ECHR’s Grand Chamber Reverses Italian Surrogacy Ruling, Catholic Ireland (Jan. 25, 2017), https://www.catholicireland.net/echrs-grand-chamber-reverses-italian-surrogacy-ruling/; press release

[6] Press Release, supra note 3.

[7] MacDonald, supra note 5.

[8] Press Release, supra note 3.

[9] Press Release, supra note 3.

[10] MacDonald, supra note 5.

[11] Surrogacy Judgment, supra note 4.

[12] Press Release, supra note 3.

[13] MacDonald, supra note 5.

[14] Press Release, supra note 3.

[15] Id.

[16] Surrogacy Judgment, supra note 4.

[17] Press Release, supra note 3.

[18] MacDonald, supra note 5.

[19] Surrogacy Judgment, supra note 4.

[20] Press Release, supra note 3.

[21] MacDonald, supra note 5.

[22] Surrogacy Judgment, supra note 4.

[23] MacDonald, supra note 5.