Paradiso and Campanelli v Italy

Parties (including notable third parties)

Donatina Paradiso and Giovanni Campanelli (Applicants); Italy (Respondent)

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Summary of Facts

Donatina Paradiso and Giovanni Campanelli, a married couple, were born in and lived in Italy. After several unsuccessful attempts at medically assisted reproduction and adoption, the Applicants entered into a surrogacy agreement with a Russian clinic. Mrs Paradiso stated that she travelled to Moscow, transporting Mr Campanelli’s seminal fluid, which she provided to the clinic for the purpose of being used in in vitro fertilisation with a surrogate mother.

The Russian clinic certified that Mr Campanelli’s seminal fluid had been used and a child was born in Moscow on 27 February 2011. The surrogate mother gave her written consent to the child being registered as the Applicants’ son. On 10 March 2011, the Applicants were registered as the baby’s parents by the Registry Office in Moscow and were provided with a Russian birth certificate. Mrs Paradiso used the birth certificate to obtain documents from the Italian Consulate in Moscow to enable her to return to Italy with the child.

The Italian Consulate in Moscow subsequently informed Italian authorities that the paperwork in respect of the child’s birth contained false information. On 5 May 2011, the Italian prosecutor’s office opened criminal proceedings against the Applicants for breaches of Article 567 of the Criminal Code relating to the use of falsified documents and Section 72 of the Adoption Act relating to non-compliance with the international adoption procedures.

The Public Prosecutor’s Office requested to make the child available for adoption on the basis that he was considered to be in a state of abandonment for the purposes of the law. The Minors Court appointed a guardian, and the guardian asked the court to suspend the Applicants’ parental responsibility. The Applicants asked for the child to be placed with them, with a view to adopting him.

On 12 May 2011, a team of social workers visited the Applicants and opined that the child was being cared for to the highest standards by the Applicants.

On 7 July 2011, the Court ordered that a DNA test be carried out, with the results showing that there was no genetic link between the child and Mr Campanelli. The Russian clinic conceded that an error had been made.

The Minors Court ordered the child be removed from the Applicants and taken into the care of the social services. An appeal by the applicants to the Court of Appeal was dismissed. The child was subsequently placed in a children’s home for approximately 15 months and all contact between the Applicants and the child was prohibited. In January 2013, the child was placed in a family and was subsequently adopted.

In April 2013, the child’s guardian asked the Minors Court to give the child a formal identity so that he could be registered for school and have access to other public services.

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Legal Arguments

Legal arguments by the Applicants

The Applicants contended that the actions of the Italian authorities resulting in the permanent removal of the child violated their right to respect for private and family life under Article 8 of the European Convention on Human Rights (‘ECHR’).  They argued that:

• The emotional ties which bound them to the child amounted to family life and therefore came within the scope of Article 8. The child was born as the result of a serious and duly considered parental project, which demonstrated the Applicants’ commitment and attachment to the child.
• The family life created between them and the child was lawful under Russian law, as evidenced by the Russian birth certificate, and the lack of a biological link was not required by Russian law.

The Applicants argued that the Italian Minors Court based their decision to remove the child exclusively on the illegality of the Applicants’ conduct, without regard to Russian legislation and with insufficient regard to the child’s interests.  The Applicants argued that the child’s best interests ought to be the primary consideration, and that the immediate severing of family ties exposed the child to serious and sustained risks to their health and wellbeing.

Legal arguments by the Respondent

Italy argued that genuine family life had never begun in the present because:

• There was no biological link and the period of cohabitation was short.
• De facto family life could not be founded on an unlawful situation. The applicants' conduct was illegal under Italian law, which prohibits surrogacy and requires specific procedures for international adoption.

Italy argued that the removal of the child was necessary because Italian law only recognised a parent-child relationship in the event of a biological tie or an adoption which complied with the safeguards set out in the Adoption Act. This legislation reflected Italy’s decision to protect the interests of minors and satisfy the requirements of Article 3 of the UN Convention on the Rights of the Child.

Italy argued that due to the lack of European consensus on commercial surrogacy, state domestic laws ought to be allowed a wide margin of appreciation.

Italy argued that the child’s best interests were treated as the primary consideration and were met by placing him in another family capable of providing for his needs.

Outcome

The Court held, by eleven votes to six, that there had been no violation of Article 8 of the ECHR.

‘Family life’ within the meaning of Article 8 of the ECHR

The Court concluded that there was no family life (or de facto family life) between the Applicants and the child within the meaning of Article 8 of the ECHR, due to the lack of a biological tie between theApplicants and the child, the short duration of the relationship, and the uncertainty of the ties from a legal perspective.

‘Private life’ within the meaning of Article 8 of the ECHR

The Court cited X v Switzerland, no. 8257/78 Commission decision of 10 July 1978, Decisions and Reports 5, as authority for the proposition that ‘a relationship between adults and a child where there are no biological or legal ties the facts may nonetheless fall within the scope of private life’ (paragraph 161).

The Court concluded that a ‘private life’ within the meaning of Article 8 of the ECHR did exist due to the Applicants’ genuine intention to become parents and the emotional bonds created between the applicants and child, and that the child’s removal amounted to an interference in the Applicants’ private life.

‘In accordance with the law’ and ‘necessary in a democratic society’ within the meaning of Article 8 of the ECHR

The Court found that despite interfering with the Applicants’ private life, the measures taken by the Italian authorities were justified under paragraph 2 of Article 8 of the ECHR as being ‘”In accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned’ (paragraph 167).  This was because:

• The measures were taken with the intention of putting an end to an unlawful situation and protecting the child (who they considered was in a state of abandonment) and also children more generally by prohibiting certain medically assisted reproductive techniques.
• The public interest was appropriately granted more weight than the Applicants’ interest in continuing their relationship with the child.
• States enjoy a wide margin of appreciation in relation to their regulation of ethically sensitive issues. The Court stated:    ‘Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted… Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider... There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights.’ (paragraph 182)

Concurring Opinion of Judge Raimondi

Judge Raimondi fully agreed with the majority decision but wrote separately to emphasise the appropriateness of the Court’s conclusion that family life did not exist.

Joint Concurring Opinion of Judges De Gaetano, Pinto De Albuquerque, Wojtyczek and Dedov

The joint concurring judges fully agreed with the outcome but had serious reservations about the underlying reasoning.

The joint concurring judges criticised the majority’s test for family life (being dependent upon the existence of close and constant personal ties) as being both too vague and too broad.  The joint concurring judges considered personal ties and emotional bonds to be insufficient on their own to create family life.

The joint concurring judges disagreed that the Applicants’ ‘parental project’ should weigh in favour of protection, and instead considered it to be an aggravating circumstance because it evidenced premeditated circumvention of domestic legislation.

The joint concurring judges criticised the majority’s reliance on the facts of the case in general supporting the existence of private life. This has the consequence of leaving ‘unclear what exactly is entailed by private life, what is the scope of the protection of the right recognized in Article 8, and what constitutes an interference within the meaning of Article 8.’ (paragraph 5).

Finally, the joint concurring judges stated that the child in this case was the victim of human trafficking and, more generally, that gestational surrogacy is incompatible with human dignity.

Concurring Opinion of Judge Dedov

Judge Dedov stated that surrogacy in all its forms is dangerous for the wellbeing of society and was satisfied that the majority in this case placed a greater emphasis on values rather than the margin of appreciation.

Joint Dissenting Opinion of Judges Lazarova Trajkovska, Bianku, Laffranque, Lemmens and Grozev

The joint dissenting judges found that family life existed for the Applicants and that it was interfered with by the State. They considered that while biological ties are an important indication of family life, they are not essential. It is possible for family life or de facto family life to exist in other circumstances such as within marriage, outside of marriage and where the parties are living together.

For the joint dissenting judges, what was important is that the period of cohabitation started from birth, would have lasted indefinitely if the authorities had not intervened, and that the Applicants had acted as parents towards the child.

The joint dissenting judges concluded that the interference by the State was not justified because it did not strike a fair balance between the various interests at stake. Too much weight was attached to the need to put an end to an illegal situation and to discourage other illegal acts, and not enough weight was attached to the child’s best interests. The joint dissenting judges were also of the view that the Applicants’ interest in continuing to develop their relationship with the child, and the impact that their immediate and irreversible separation from the child would have on them, was not sufficiently taken into account.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Articles 8, 34 and 43
International	United Nations Convention on the Rights of the Child	Articles 3, 7, 9, 20 and 21
International	UN Committee on the Rights of the Child, General Comment No. 7 (2005): Implementing Child Rights Early in Childhood	Para 13
International	Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1961)	Articles 2-3 and 5
International	Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (1993)	Article 4
Domestic	Private International Law Act (Law no. 218 of 1995) - Italy	Section 33
Domestic	Simplification of Civil Status Act (Presidential Decree no. 396 of 3 November 2000) - Italy	Sections 15, 17-18 and 65
Domestic	Medically Assisted Reproduction Act (Law no. 40 of 19 February 2004) - Italy	Sections 4 and 12
Domestic	Adoption Act (Law no. 184 of 1983, as amended by Law no. 149 of 2001) - Italy	Sections 2, 5-15, 17, 19-20, 37, 44 and 72
Domestic	Criminal Code - Italy	Articles 489 and 567
Domestic	Family Code of 29 December 1995 - Russia	Article 51 § 4
Domestic	Basic Law on the Protection of Citizens’ Health (Federal Law no. 323 FZ of 21 November 2011) - Russia	Section 55

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Kathryn Webb Bradley, ‘Surrogacy and Sovereignty: Safeguarding the Interests of Both the Child and the State’ (2008) 43(4) North Carolina Journal of International Law 1

• The author argues that Italy was able to protect its own interests and those of the child by promptly questioning the parental status of the couple and exercising control over the child as soon as he entered the country.
• Although the Court found that Italy’s actions amounted to an interference with the couple’s private life, it found these actions to be justified.
• The author points out that child was stateless and in limbo until the child was eventually adopted and appears to have become eligible to obtain Italian citizenship through naturalisation.

Marianna Iliadou, ‘Surrogacy and the ECtHR: Reflections on Paradiso and Campanelli v Italy’ (2018) 27(1) Medical Law Review 144

• This article points out tha the decision introduced new and restrictive standards for the recognition of de facto family life under Article 8 of the ECHR. This new approach moves away from a focus on the emotional bond between parents and child, towards genetic ties, the duration of cohabitation and the legality of the parents’ actions.

E.C. Loibl, ‘The ECHR and private intercountry adoptions in Germany and the Netherlands: Lessons learned from Campanelli and Paradiso v. Italy’ (2021) Family & Law 1

• The article argues that the judgment marks a shift away from previous ECtHR decisions which prioritised the best interests of the child and towards a greater emphasis on the deterrence of unlawful conduct.
• The current German and Dutch judicial approach of automatically recognizing private adoptions will be difficult to apply in the future in light of the ECtHR’s decision.
• The author suggests the Court effectively distinguished between ‘legitimate’ and ‘illegitimate’ families and failed to give sufficient weight to the interests of the child and the intended parents.