09 Feb European Court Rules Italy Did Not Violate Intended Parents' Rights in Taking Child Born Via ART
Last year we applauded a decision by the European Court of Human Rights that the Italian government violated the rights of an Italian couple in removing from their home the baby they had via surrogacy in Russia. In a January 24 decision, the ECHR reversed that decision, ruling instead that the action did not constitute a violation of the intended parents’ human rights. What happened?
This is a complex and troubling case, made more complex by the fact that DNA testing revealed the baby the Italian couple believed was conceived in a Russian clinic using the husband’s sperm was not biologically related to either intended parent. The intended mother claims to have transported the intended father’s sperm with her to the Russian clinic with the intention of using assisted reproductive technology to have a child using his sperm and a donated egg. The surrogate was impregnated with the resulting embryo and gave birth to a healthy child in 2011. The Russian government issued a birth certificate designating the two intended parents as legal parents. Two months after the birth, the mother brought the baby back home to Italy.
Back in Italy, where surrogacy and egg and sperm donation are illegal, authorities reacted swiftly to what they viewed as an unlawful situation. They ordered DNA testing to establish parentage of the child, only to discover the child had no biological relationship to either intended parent. They refused to recognize the Russian birth certificate. They discounted the intended mothers’ claim that she had transported the intended fathers’ sperm to the Russian clinic. In the absence of a biological relationship to the intended parents, and the fact that the surrogate was not biologically related to the child, they deemed the child abandoned. Within six months of the family’s return to Italy, authorities placed the child for adoption by another couple. By the time the case wended its way through the legal system and was heard by the ECHR, the child had been living for some years with the adoptive parents. Although the ECHR initially ruled that the Italian government’s action was a violation of the intended parents’ rights and imposed steep fines and legal fees on the government, the child remained with the adoptive parents, by that time having established strong emotional ties.
According to a summary of the case provided by our Italian colleague, Avv. Ida Parisi, in the original ruling the ECHR held that, while the Italian government had the right to refuse recognition of the parental relationship established under Russian law, taking the child away from the couple infringed on their right to private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Italian government appealed, and on January 24 the Grand Chamber of the European Court of Human Rights overturned its previous ruling, concluding that “no family life existed in the present case.” In its decision, the ECHR cited the absence of any biological tie between the child and the intended parents, the short duration of the intended parents’ relationship with the child, and the uncertainty of the ties from a legal perspective.
The intended parents, in their application to the European court, claimed the Italian government acted punitively in taking their child. The Italian government’s view is that the couple went to Russia, bought a baby, then brought it back to Italy illegally. The fact the couple persevered in their case for so many years leads one to feel they believed they were conceiving a baby using the husband’s sperm. There is little doubt they suffered a wrenching blow in losing the baby they had loved for the first eight months of its life.
In the global arena of fertility law, while new technologies evolve at lightening pace, the wheels of justice crank along slowly. Laws governing parentage, citizenship and reproduction vary wildly from country to country, as do societal norms and public opinion, and the day when there are international standard governing such matters is a long way off. While the momentum overall is undoubtedly toward increased reproductive freedoms and prioritization of the child’s wellbeing, sometimes, as in this case, the evolution of reproductive law seems to be two steps forward, then one step back.