Italy was allowed to withdraw custody of a child sold through surrogacy

Jan 24, 2017 by

by Grégor Puppinck, European Centre for Law & Justice:

On the 24th January, the Grand Chamber of the European Court of Human Rights, in formal formation, has published an important decision which overturns a prior decision of January 2015 as regards surrogacy in the Paradiso and Campanelli v. Italy case.

In contradiction with its prior decision, the Grand Chamber of the Court ruled, by eleven votes for and six against, that the Italian authorities could legitimately withdraw the custody of a child obtained illegally through surrogacy from the buying parents. That way, the Court gives back to European States a possibility to fight against international surrogacy.

This case is different from the rulings against France (Mennesson, Labassée, etc) in so far as the child has no biological connection with the Italian purchasers: he was produced to order for €49,000 by a     Muscovite company with other people’s gametes. The Italian authorities, noticing the violation of international laws and of the Italian public order, decided –in the interest of the child– to withdraw him from the custody of his buyers to place him in care for adoption. The child had lived less than six months with his purchasers.

In a first ruling on 27th January 2015, the Court had condemned Italy to pay €30,000 to the couple, reckoning that the withdrawing of the child had been a violation of the respect to their private and family life, while granting that Italy could refuse to recognise the filiation that had been established in Russia. For such a ruling, the Court had conceded that the purchase of a child can constitute the foundation of a family life protected by Human Rights as long as the buyers had “acted as parents” for a few months. The Court deduced from this that the protection of this “family life” took precedence over the respect of public order and that it was in the interest of the child to be raised by his purchasers. In doing so the Court ratified the sale of a child, paradoxically in the name of the best interest of the child.

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