CASE OF PARADISO AND CAMPANELLI v. ITALY
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
András Sajó;André Potocki;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Helena Jäderblom;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Síofra O’Leary;Vincent A. De Gaetano;Yonko Grozev
8. The applicants – a married couple – were born in 1967 and 1955 respectively and live in Colletorto. 9. After trying to have a child and having unsuccessfully resorted to medically assisted reproduction techniques, the applicants put themselves forward as adoptive parents. 10. On 7 December 2006 the applicants obtained official authorisation from the Campobasso Minors Court to adopt a foreign child within the meaning of Law no. 184 of 1983, entitled “The Child’s Right to a Family” (hereafter, “the Adoption Act”), subject to the condition that the child’s age was to be compatible with the limits foreseen by the Act (see paragraph 63 below). The applicants state that they waited in vain for a child who was eligible for adoption. 11. They subsequently decided to try resorting to assisted reproduction techniques again and to a surrogate mother in Russia. To that end, they contacted a Moscow-based clinic. The first applicant stated that she travelled to Moscow, transporting from Italy the second applicant’s seminal fluid, duly conserved, which she handed in at the clinic. A surrogate mother was found and the applicants entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos were implanted in the surrogate mother’s womb on 19 June 2010. 12. On 16 February 2011 the Russian clinic certified that the second applicant’s seminal fluid had been used for the embryos to be implanted in the surrogate mother’s womb. 13. The first applicant travelled to Moscow on 26 February 2011, the clinic having indicated that the child was due to be born at the end of the month. 14. The child was born in Moscow on 27 February 2011. On the same day the surrogate mother gave her written consent to the child being registered as the applicants’ son. Her written declaration, bearing the same date and read aloud at the hospital in the presence of her doctor, the chief physician and the head of the hospital department, is worded as follows (English translation of the original Russian version): “I, the undersigned... have given birth to a boy in the ... maternity hospital in Moscow. The child’s parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb. On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51(4) of the Family Code, I hereby give my consent for the above couple to be entered in the birth record and the birth certificate as parents of the child to whom I have given birth...” 15. In the days following the child’s birth, the first applicant moved with him into a flat in Moscow, rented by her in advance. The second applicant, who had remained in Italy, was able to communicate with her regularly via internet. 16. On 10 March 2011 the applicants were registered as the new-born baby’s parents by the Registry Office in Moscow. The Russian birth certificate, which indicated that the applicants were the child’s parents, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. 17. On 29 April 2011 the first applicant went to the Italian Consulate in Moscow, with the birth certificate, in order to obtain the documents that would enable her to return to Italy with the child. The Italian Consulate issued the documents enabling the child to leave for Italy with the first applicant. 18. On 30 April 2011 the first applicant and the child arrived in Italy. 19. In a note of 2 May 2011 – which was not filed in the proceedings before the Court – the Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and Municipality that the paperwork in respect of the child’s birth contained false information. 20. A few days later the second applicant contacted the Colletorto municipality, requesting that the birth certificate be registered. 21. On 5 May 2011 the prosecutor’s office opened criminal proceedings against the applicants, who were suspected of “misrepresentation of civil status” within the meaning of Article 567 of the Criminal Code, of “use of falsified documents” within the meaning of Article 489 of the Criminal Code and of the offence set out in section 72 of the Adoption Act, since they had brought the child to Italy in breach of the procedure provided for by the provisions on international adoption contained therein (see paragraph 67 below). 22. In parallel, on 5 May 2011, the Public Prosecutor’s Office at the Campobasso Minors Court requested the opening of proceedings to make the child available for adoption, since he was to be considered as being in a state of abandonment for the purposes of the law. On the same date the Minors Court appointed a guardian ad litem (curatore speciale) and opened proceedings to make the child available for adoption. 23. On 16 May 2011 the Minors Court placed the child under guardianship at the request of the Public Prosecutor. The child’s guardian asked the court to suspend the applicants’ parental responsibility, in application of section 10 § 3 of the Adoption Act. 24. The applicants challenged the measures in respect of the child. 25. Following a request of the Minors Court on 10 May 2011, the applicants were visited by a team of social workers on 12 May 2011. Their report, dated 18 May 2011, indicated that the applicants were viewed positively and respected by their fellow citizens, and that they had a comfortable income and lived in a nice house. According to the report, the child was in excellent health and his well-being was self-evident, since he was being cared for by the applicants to the highest standards. 26. On 25 May 2011 the first applicant, assisted by her lawyer, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, transporting her husband’s seminal fluid. She stated that she entered into a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to be implanted with genetic material from the first applicant and her husband through the Vitanova Clinic in Moscow. The applicant explained that this practice was perfectly legal in Russia and had made it possible for her to obtain a birth certificate which identified the applicants as parents. In June or July 2010 the first applicant had been contacted by the Russian company, which informed her that a surrogate mother had been found, and she had given her consent to the medical procedure. 27. On 27 June 2011 the applicants were heard by the Minors Court. The first applicant stated that, after eight unsuccessful attempts at in vitro fertilisation, which had endangered her health, she had resorted to the Russian clinic, since it was possible in that country to use ova from a donor, which were subsequently implanted in the surrogate mother. 28. On 7 July 2011 the court ordered that DNA testing be carried out in order to establish whether the second applicant was the child’s biological father. 29. On 11 July 2011 the Ministry of the Interior asked the Registry Office to refuse to enter the particulars of the birth certificate in the civilstatus register. 30. On 1 August 2011 the second applicant and the child underwent DNA testing. The result of these tests showed that there was no genetic link between them. 31. Following the outcome of these tests, the applicants sought an explanation from the Russian clinic. Months later, in a letter of 20 March 2012, the clinic’s management informed them that it had been surprised by the results of the DNA test. It stated that there had been an internal inquiry, since an error had clearly occurred, but it had proved impossible to identify the individual responsible for the error, given that there had been dismissals and recruitment of other staff in the meantime. 32. On 4 August 2011 the Registry Office of the Colletorto Municipality refused to register the Russian birth certificate. The applicants lodged an appeal with the Larino Court against this refusal. The subsequent proceedings are set out in paragraphs 46-48 below. 33. The Public Prosecutor asked the Larino Court to give the child a new identity and to issue a new birth certificate. 34. As part of the proceedings to make the child available for adoption which were then pending before the Minors Court (see paragraph 22 above), the applicants asked a psychologist, Dr I., to prepare a report on the child’s well-being. The report drawn up by Dr I. on 22 September 2011, after four meetings with the child, indicates that the applicants – who were attentive to the child’s needs – had developed a deep emotional bond with him. The report indicated that the grandparents and other family members also surrounded the child with affection, and that he was healthy, lively and responsive. Dr I. concluded that the applicants were suitable parents for the child, both from a psychological perspective and in terms of their ability to educate him and bring him up. She added that possible removal measures would have devastating consequences for the child, explaining that he would go through a depressive phase on account of a sense of abandonment and the loss of the key persons in his life. In her opinion, this could lead to somatic symptoms and compromise the child’s psycho-physical development, and, in the long term, symptoms of psychotic pathology could emerge. 35. The applicants asked for the child to be placed with them, with a view to adopting him if necessary. 36. By an immediately enforceable decision of 20 October 2011, the Campobasso Minors Court ordered that the child be removed from the applicants, taken into the care of the social services and placed in a children’s home (casa famiglia). 37. The relevant passages of the Minors Court’s decision read as follows: “... In their evidence Mr Campanelli and Mrs Paradiso stated that Mrs Paradiso had travelled to Russia carrying her husband’s semen in a special container, and had there entered into an agreement with the company Rosjurconsulting. Under this agreement, Mrs Paradiso had delivered her husband’s semen to a pre-determined clinic. One or more eggs from an unknown female donor had been fertilised in vitro with this semen, and then implanted into another woman, whose identity is known and who had subsequently given birth to the child in question on 27 February 2011. In exchange, Mr Campanelli and Mrs Paradiso had paid a large amount of money. Mrs Paradiso stated that the woman who had given birth to the child had waived her rights to him and had consented to him being referred to on the birth certificate, drawn up in Russia, as the son of Mr Campanelli and Mrs Paradiso (a copy of the informed consent, given on 27 February 2011 by the woman who gave birth to the child, is on file in these proceedings). A court-appointed expert witness was then instructed to establish whether the minor child was the biological son of Giovanni Campanelli. In her report the court-appointed expert witness, Ms [L.S.], concluded that the results obtained by means of typing of the DNA of Giovanni Campanelli and the DNA of the minor child [T.C.] rule out Giovanni Campanelli as the child’s biological father. In today’s hearing Mr Campanelli and Mrs Paradiso referred to their previous evidence and Mrs Paradiso repeated that she had taken her husband’s semen to Russia to be used for the purpose of the intended fertilisation. However, the conclusions of the court-appointed expert witness have not been challenged. At the close of the hearing, the Public Prosecutor requested that the application by Mr Campanelli and Mrs Paradiso be refused, that the minor child be placed in the care of third parties and that a temporary guardian be appointed for him. The child’s guardian ad litem asked that the child be placed in care under section 2 of the Adoption Act and that a guardian be appointed. Mr Campanelli and Mrs Paradiso requested primarily that the court award them temporary care of the child with a view to subsequent adoption; in the alternative, they requested the suspension of these proceedings pending the criminal classification of the offences, and the suspension of the above-mentioned criminal proceedings against them and of the proceedings before the Campobasso Court of Appeal to challenge the refusal to register the child’s birth certificate; again in the alternative, they requested the suspension of these proceedings under section 14 of Law no. 184/1983 for the purpose of a possible repatriation of the minor child to Russia, or, failing that, for the child to be placed with them under section 2 of the cited law. That being the case, the court finds that the statements by Mr Campanelli and Mrs Paradiso regarding the delivery to Russia of Giovanni Campanelli’s genetic material are not supported by any evidence. On the other hand, it has been established that the minor [T.C.] is neither the biological son of Donatina Paradiso, nor, given the evidence of the expert report, of Giovanni Campanelli. At the present time the only certainty is the identity of the woman who gave birth to the baby. The biological parents of the baby, that is, the man and the woman who provided the gametes, remain unknown. In the light of this evidence, the present case cannot be viewed as a case of so-called gestational surrogacy, which is the case where the surrogate mother who gives birth to the baby has no genetic link to him or her, the fertilisation having taken place with the egg(s) of a third woman. Indeed, in order to be able to talk of gestational or traditional surrogacy (in the latter, the surrogate mother makes her own ovules available) there must be a biological link between the child and at least one of the two intended parents (in this specific case, Mr Campanelli and Mrs Paradiso), a biological link which, as has been seen, is non-existent.” In the court’s view, the applicants had thus placed themselves in an unlawful situation: “It follows that by bringing a baby to Italy, passing him off as their own son, in blatant infringement of the provisions of our legislation (Law no. 184 of 4 May 1983) governing inter-country adoption of children, Mr Campanelli and Mrs Paradiso have acted unlawfully. Besides any criminal offences which may have been committed (infringement of section 72(2) of Law no. 184/1983), which are not within the jurisdiction of this court, it is noted that the agreement entered into between Mrs Paradiso and the company Rosjurconsulting had unlawful elements since, given the terms of the agreement (the delivery of Mr Campanelli’s genetic material for the fertilisation of another woman’s ovules), it was in breach of the ban on the use of assisted reproductive technology (A.R.T.) of a heterologous type laid down by section 4 of Law no. 40 of 19 February 2004. In any event, it is pointed out that despite being in possession of the authorisation for inter-country adoption issued by order of this court on 7 December 2006, Mr Campanelli and Mrs Paradiso, as has been stated, intentionally evaded the provisions of Law no. 184/1983, which provide not only that the intended adoptive parents must apply to an authorised body (section 31) but also for the involvement of the Commission for Inter-country Adoption (section 38), the only body competent to authorise entry and permanent residence of a foreign child in Italy (section 32).” The court therefore found it necessary, first and foremost, to put an end to this unlawful situation: “It is therefore necessary, above all, to prevent this unlawful situation from continuing, since to maintain it would be equivalent to ratifying unlawful conduct in open violation of the provisions of our legislation. Accordingly, it is necessary to remove the minor child from Mr Campanelli and Mrs Paradiso and place him in an appropriate structure with a view to identifying a suitable couple to foster the child as soon as possible. The Social Services Department of the Municipality of Colletorto is therefore instructed to identify an appropriate structure and to place the child in it. The Italian legislation on adoption applies to this child in accordance with section 37a of Law No. 184/1983, there being no doubt that he is in Italy in a state of abandonment, having been deprived of his biological parents and other relatives, and the mother who gave birth to him having renounced him. Admittedly, it cannot be denied that the child will in all likelihood suffer harm from being separated from Mr Campanelli and Mrs Paradiso. However, given the age of the child and the short time he has spent with them, the court cannot agree with the conclusions of the report by psychologist [Dr I.] (instructed by Mr Campanelli and Mrs Paradiso), finding that it is certain that the child’s separation from them would entail devastating consequences. Indeed, according to the literature on this subject, the mere separation from the main care-givers is not a causal agent of a psychopathological state in a child unless other causal factors are present. The trauma caused by the separation from Mr Campanelli and Mrs Paradiso will not be irreparable, given that a search will begin immediately for a couple able to attenuate the consequences of the trauma, through a compensatory process that will encourage a new adaptation. It is also pointed out that the fact that Mr Campanelli and Mrs Paradiso (and in particular Mrs Paradiso) have put up with the hardships and the difficulties of A.R.T (Mrs Paradiso has also stated that during one of these interventions her life was at risk) and have preferred, despite being in possession of an approval for inter-country adoption, to circumvent Italian legislation on this subject gives rise to the doubt and the fear that the minor child may be an instrument to fulfil a narcissistic desire of Mr Campanelli and Mrs Paradiso or to exorcise an individual or joint problem. In the light of the conduct of Mr Campanelli and Mrs Paradiso during the events under examination, all of this throws a consistent shadow over their possession of genuine affective and educational abilities and of the instinct of human solidarity which must be present in any person wishing to bring the children of others into their lives as their own children. The separation of the minor child from Mr Campanelli and Mrs Paradiso thus corresponds to the best interests of the child.” 38. According to the applicants, the court’s decision was enforced on the same day, without their having been informed of the decision in advance. 39. The applicants lodged an appeal (reclamo) before the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not contest the Russian birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings against them and the proceedings challenging the refusal to enter the birth certificate in the Italian civil-status register were pending. 40. By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal. The Court of Appeal found that the child T.C. was “in a state of abandonment” (in stato di abbandono) within the meaning of section 8 of the Adoption Act, as the applicants were not his parents. In those circumstances, the question of whether or not the applicants were criminally liable and whether or not there had been an error in the use of seminal fluid of unknown origin was not, in its view, relevant. In the Court of Appeal’s opinion, it was not appropriate to await the outcome of the criminal trial or of the proceedings brought by the applicants to challenge the refusal to enter the particulars of the birth certificate in the register. The Court of Appeal also considered that section 33 of Law no. 218/95 (the Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State, and that there was no issue of lack of jurisdiction, since, according to section 37bis of the Adoption Act, “... the Italian law governing adoption, fostering, and necessary measures in case of urgency shall be applicable to a foreign minor child who is in [Italy] in a state of abandonment” (cf. also Cass 1128/92)”. 41. No appeal to the Court of Cassation lay against that decision (see paragraph 68 below). 42. In the meantime, on 30 October 2011 the public prosecutor at the Larino Court had ordered the preventive seizure of the Russian birth certificate, on the ground that it was an essential item of evidence. In the prosecutor’s view, in all probability the applicants had not only committed the offences with which they were charged, but they had attempted to conceal them. They had, according to him, inter alia, stated that they were the biological parents and had then corrected their versions of events as these were successively disproved. 43. The applicants challenged the preventive seizure order. 44. By a decision of 20 November 2012, the Campobasso Court dismissed the applicants’ appeal on the ground of the strong suspicions that they had committed the offences in question. In particular, the court noted the following facts: the first applicant had spread a rumour that she was pregnant; she had gone to the Italian Consulate in Moscow and implied that she was the natural mother; she had subsequently admitted that the child had been born to a surrogate mother; she had stated to the carabinieri on 25 May 2011 that the second applicant was the biological father, which had been disproved by the DNA tests; she had thus made false statements; she had been very vague as to the identity of the genetic mother; the documents concerning the surrogate motherhood stated that the two applicants had been seen by the Russian doctors, which did not correspond to the fact that the second applicant had not travelled to Russia; the documents relating to the birth did not give any precise date. The court considered that the only certainty was that the child had been born and that he had been handed over to the first applicant against payment of almost 50,000 euros (EUR). In the court’s view, the hypothesis that the applicants had behaved illegally with a view to having the particulars of the birth certificate entered in the civilstatus register and to circumventing the Italian legislation thus appeared well-founded. 45. In November 2012 the Public Prosecutor transmitted the decision regarding the preventive seizure to the Minors Court and indicated that a conviction under section 72 of the Adoption Act would deprive the applicants of the possibility of fostering (affido) the child and of adopting him or other minors. In the Public Prosecutor’s view, there was therefore no other solution but to proceed with the adoption procedure for the child, and his temporary placement with a foster family had therefore been requested, in accordance with sections 8 and 10 of the Adoption Act. The Public Prosecutor repeated his request and emphasised that the child had been removed more than a year previously, and that he had since been living in a children’s home (casa famiglia), where he had developed meaningful relationships with the persons responsible for his care. He explained that the child had thus still not found a family environment to replace the one that had been illegally provided by the couple who had brought him to Italy. According to the Public Prosecutor, the child seemed destined for another separation, even more painful than that from the mother who had given birth to him and then from the woman who claimed to be his mother. 46. An appeal having been lodged to contest the Registry Office’s refusal to enter the particulars of the Russian birth certificate in the civilstatus register, the Larino Court declined jurisdiction on 29 September 2011. The proceedings were subsequently resumed before the Campobasso Court of Appeal. The applicants insisted that the particulars of the Russian birth certificate be entered in the Italian register. 47. By an immediately enforceable decision of 3 April 2013, the Campobasso Court of Appeal ruled on the transcription of the birth certificate into the Italian register. By way of introduction, the Court of Appeal dismissed the objection raised by the guardian to the effect that the applicants did not have standing to bring an action before that court; it acknowledged that the applicants had standing to bring proceedings in that they were referred to as the “parents” in the birth certificate that they wished to have entered in the civil-status register. However, the Court of Appeal considered it clear that the applicants were not the biological parents and concluded that there had not therefore been a gestational surrogacy. It noted that the parties were in agreement that the Russian legislation presupposed a biological link between the child and at least one of the intended parents before the term surrogate motherhood could be used. It concluded that the birth certificate was fraudulent (ideologicamente falso) and in breach of Russian law. In the Court of Appeal’s view, given that there was nothing to show that the child had Russian citizenship, the applicants’ argument that Italian law was inapplicable ran counter to section 33 of the Private International Law Act, which stated that the legal parent-child relationship was determined by the national law governing the child at the time of his or her birth. The Court of Appeal added that it was contrary to public order to register the contested birth certificate, since it was fraudulent. It stated that although the applicants had pleaded their good faith, alleging that they were unable to explain why the second applicant’s seminal fluid had not been used in the Russian clinic, this made no difference to the situation and did not alter the fact that the second applicant was not the biological father. 48. In conclusion, the Court of Appeal held that it was legitimate to refuse to register the Russian birth certificate and to grant the Public Prosecutor’s request that a new birth certificate be issued. The Court of Appeal therefore ordered that a new birth certificate be issued, indicating that the child was the son of persons unknown, born in Moscow on 27 February 2011, and that he would be given a new name, determined in accordance with Presidential Decree no. 396/00. 49. Following execution of the decision issued by the Minors Court on 20 October 2011, the child was placed in a children’s home for about fifteen months, in a location that was unknown to the applicants. All contact between the applicants and the child was prohibited. They were unable to obtain any news of him. 50. In January 2013 the child was placed in a family with a view to his adoption. 51. At the beginning of April 2013 the guardian asked the Minors Court to give the child a formal identity, so that he could be registered for school without complications. He stated that the child had been placed in a family on 26 January 2013, but that he did not have an identity. This “inexistence” had a significant impact on administrative matters, particularly with regard to deciding under what name the child was to be registered for school, for vaccination records, and for residence. While accepting that this situation corresponded to the aim of preventing the applicants from discovering the child’s whereabouts, for his own protection, the guardian explained that a temporary formal identity would enable the secrecy surrounding the child’s real identity to be maintained, while simultaneously enabling him to have access to public services; for the time being, he was entitled only to use emergency medical services. 52. The case file indicates that this request was granted by the Minors Court and that the child received a formal identity. 53. The Government have indicated that the child has now been adopted. 54. The proceedings to make the child available for adoption were resumed before the Minors Court of Campobasso (see paragraph 22 above). The applicants confirmed their opposition to the child’s placement with third persons. The guardian asked for a statement ruling that the applicants no longer had locus standi. The Public Prosecutor asked the Minors Court not to declare the child available for adoption using the name originally given to him, on the ground that, in the meantime, he had opened a second set of proceedings requesting that the child be declared available for adoption under his new identity (child of unknown parents). 55. On 5 June 2013, the Minors Court held that the applicants no longer had standing to act in the adoption proceedings, given that they were neither the child’s parents nor members of his family within the meaning of section 10 of the Adoption Act. The court stated that it would settle the question of the child’s adoption in the context of the other set of adoption proceedings, referred to by the Public Prosecutor. 56. No information has been provided by the parties concerning subsequent developments in the criminal proceedings brought against the applicants. It seems that those proceedings are still pending.