CASE OF PARADISO AND CAMPANELLI v. ITALY
Preliminary objection allowed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1967 and 1955 respectively and live in Colletorto. 6. The applicants are a married couple. In the application form, they indicated that, after unsuccessful attempts at in vitro fertilisation, they decided to resort to gestational surrogacy in order to become parents. To that end, they contacted a Moscow-based clinic which specialised in assisted reproduction technology. They entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos “belonging to them” were implanted in the womb of a surrogate mother on 19 June 2010. There was no genetic link between this woman and the embryos. 7. The baby was born on 27 February 2011. The surrogate mother gave her written consent to the child being registered as the applicants’ son. Her written declaration, dated the same day, and read aloud at the hospital in the presence of her doctor, the head doctor and the head of the (hospital) department, is worded as follows (English translation of the original Russian version): “I, the undersigned... gave 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’s entry in the birth record and the birth certificate as parents of the child to whom I gave birth...” This statement, in the Italian translation appended to the original, reads as follows (in English): “I, the undersigned... gave birth to a boy in the ... maternity hospital in Moscow. The child’s genetic 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’s entry in the birth record and the birth certificate as parents of the child to whom I gave birth...” 8. On 10 March 2011, in accordance with Russian law, the applicants were registered as the baby’s parents. The Russian birth certificate, which contained no reference to the gestational surrogacy, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 (hereafter, “the Hague Convention”) Abolishing the Requirement of Legalisation for Foreign Public Documents. 9. On 29 April 2011 the first applicant went to the Italian Consulate in Moscow to obtain the documents that would allow the baby to leave for Italy with her. The applicant answered questions and submitted the paperwork concerning the child’s birth. The Italian Consulate issued the documents enabling the boy to leave for Italy with the first applicant. 10. On 30 April 2011 the first applicant and the child arrived in Italy. A few days later the second applicant contacted the Colletorto municipality, requesting that the particulars of the birth certificate be entered in the register. 11. In a note of 2 May 2011 – which is not included in the Court’s casefile – the Italian Consulate in Moscow indicated to the Campobasso Youth 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. 12. On 5 May 2011 the applicants were placed under formal investigation for “altering civil status” within the meaning of Article 567 of the Criminal Code and forgery within the meaning of Articles 489 and 479 of the Criminal Code; and also for breaching section 72 of the Adoption Act (Law no. 183/1984), since they had brought the child into the country in breach of the law and had circumvented the condition set out in the adoption authorisation obtained by them on 7 December 2006, which prohibited them from adopting such a young child. 13. On 5 May 2011 the State Counsel’s Office attached to the Campobasso Youth Court asked that proceedings to free the child for adoption be opened, since the child ought to be considered, for legal purposes, as having been abandoned. On the same date the Youth Court appointed a guardian ad litem (curatore special) within the meaning of section 8 of Law no. 184/1983 and opened proceedings to free the child for adoption. On 16 May 2011 the State Counsel asked for a court-appointed adviser (curatore) to be named within the meaning of sections 8 and 10 of Law no. 184/83. A court-appointed adviser was named. It appears from the case file that the applicants protested against the measures in respect of the child and had asked to be able to adopt him. 14. On 25 May 2011 the first applicant, assisted by a lawyer of her own choosing, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, carrying with her seminal fluid that had previously been collected from her husband. She had concluded a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to have implanted in her womb genetic material from the first applicant and her husband, through the Vitanova Clinic in Moscow. This practice was perfectly legal in Russia, and made it possible to obtain a birth certificate which identified the applicants as parents. In June/July 2010 the first applicant had been contacted by the Russian company, which stated that a surrogate mother had been found and had agreed to the medical procedure. On 10 March 2011 the first applicant had travelled to Moscow. In April 2011, with a birth certificate issued on 10 March 2011 by the Russian authorities, she had gone to the Italian Consulate in Moscow to obtain the documents that would enable the child to leave Russia and travel to Italy. The birth certificate showed the applicants’ names and identified them as the parents. 15. On 27 June 2011 the applicants were heard by the Youth 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 had been possible in Russia to use ova from a donor, which were subsequently implanted in the surrogate mother’s womb. 16. At the same time, the child’s court-appointed adviser asked the court to suspend the applicants’ parental responsibility within the meaning of section 10 § 3 of Law no. 184/1983. 17. 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. 18. 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 civil-status register. 19. On 1 August 2011 the second applicant and the child underwent DNA testing. The result of those tests showed that there was no genetic link between them. 20. On 4 August 2011 the Registry Office refused to register the birth certificate. The applicants lodged an appeal with the Larino Court against this refusal. The State Counsel’s Office asked the court to give the child a new identity and to issue a new birth certificate. 21. The Larino Court having ruled on 29 September 2011 that it did not have jurisdiction, the proceedings resumed before the Campobasso Court of Appeal. The applicants demanded that the particulars of the Russian birth certificate be entered in the Italian register. 22. On 20 October 2011, on the basis of the genetic testing and the submissions of the parties, including those of the child’s court-appointed adviser, the Youth Court decided to remove the child from the applicants. This decision was immediately enforceable. In reaching its decision, the court took account of the following factors: the first applicant had stated that she was not the genetic mother; the ova came from an unknown woman; the DNA test carried out on the second applicant and the child had shown that there was no genetic link between them; the applicants had paid a large sum of money (49,000 euros (EUR)); contrary to his allegations, there was nothing to prove that the second applicant’s genetic material had indeed been transported to Russia. The only thing that was certain in this story was the identity of the surrogate mother, who was not the biological mother and who had relinquished the child just after his birth. The biological parents remained unknown. That being the case, the situation was not one of subrogated maternity, since the child had no biological link with the applicants. The latter were steeped in illegality: they had brought a child into Italy by passing him off as their son. In so doing, they had, in the first place, breached the provisions on international adoption (Law no. 184 of 4 May 1983), section 72 of which made such breaches a criminal offence, the assessment of which was not, however, a matter for the youth court. Secondly, the agreement entered into by the applicants with the company Rosjurconsulting was contrary to the Medically Assisted Reproduction Act (Law no. 40 of 19 February 2004), section 4 of which prohibited heterologous assisted fertilisation. This illegal situation had to be brought to an end, and the only way to do so was to remove the child from the applicants. The child would admittedly suffer harm as a consequence of the separation but, given the short period spent with the applicants and his young age, the child would be able to surmount this. Steps would be taken immediately to find a couple of adoptive parents. In addition, given that the applicants had preferred to circumvent the adoption legislation, notwithstanding the authorisation they had received, it could be thought that the child resulted from a narcissistic desire on the part of the couple or indeed that he was intended to resolve problems in their relationship. In consequence, the court cast doubt on whether they were genuinely capable of providing emotional and educational support. As the child had neither a biological family nor his surrogate mother, since she had relinquished him, the court considered that the Italian legislation on adoption was applicable to this case (within the meaning of section 37bis of Law no. 184/1983), entrusted the child to the social services and appointed a guardian (tutore) for his defence. 23. The child was placed in a children’s home (casa famiglia) in a locality that was unknown to the applicants. They were forbidden from having contact with the child. 24. The applicants lodged an appeal (reclamo) with the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not call into question the birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings brought against them and the proceedings challenging the refusal to enter the birth certificate in the Italian register were pending. 25. By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal. It transpires from this decision, among other points, that section 33 of Law no. 218/95 (Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State. There was no issue of lack of jurisdiction, since section 37bis of the International Adoption Act (Law no. 184/1983) provided that Italian law was applicable if the alien minor had been abandoned, and that was the situation in this case. Moreover, it was unnecessary to await the outcome of the criminal proceedings, since the applicants’ criminal liability was irrelevant. On the contrary, it was necessary to take an urgent measure in respect of the child, in order to put an end to the illegal situation in which the applicants existed. It was not possible to lodge an appeal on points of law against this decision. 26. It appears from a memorandum dated 22 May 2012, sent by the youth court to the Ministry of Justice, that the child had not yet been declared available for adoption, since the proceedings with regard to the transcription of the child’s birth certificate were pending before the Campobasso Court of Appeal. 27. In the meantime, on 30 October 2011 the State Counsel attached to the Larino Court had ordered the interim attachment of the Russian birth certificate, on the ground that it was an essential piece of evidence. It appeared from the case file that not only had the applicants probably committed the offences with which they were charged, but that they had attempted to conceal them. Among other things, they had stated that they were the biological parents, and had corrected their versions of the events over time as those versions had been proved inaccurate. 28. The applicants appealed against the interim attachment order. 29. By a decision of 20 November 2012, the Campobasso Court dismissed the applicants’ appeal. The decision indicates that there existed serious suspicions that the offences in question had been committed. In particular, the first applicant had put about a rumour that she was pregnant; she had gone to the Consulate and implied that she was the natural mother; she had then 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, although the DNA tests had disproved this, and had therefore 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 accord with the fact that the second applicant had not been in Russia; the documents about the birth did not have a precise date. All that was known was that the child had been born and that he had been handed over to the first applicant against payment of almost EUR 50,000. Accordingly, the hypothesis that the applicants had conducted themselves illegally with a view to having the particulars of the birth certificate entered in the register of births, marriages and deaths and to circumventing the Italian legislation appeared sound. 30. In November 2012 the decision regarding the interim attachment was transmitted to the youth court by State Counsel, since it had the following implications. The charges under section 72 of Law no. 184/1983 deprived the applicants of the possibility of fostering (affido) the child and of adopting him or other minors. There was therefore no other solution but to proceed with the adoption procedure for the child. The temporary placement with a foster family had been requested by virtue of sections 8 and 10 of Law no. 184/83. The State Counsel 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 looking after him. Thus, the child had not yet found a replacement family environment for the home that had been illegally provided by those who had brought him to Italy. He seemed destined for yet another separation, even more painful than that from the mother who had given birth to him and from the woman who was claiming to be his mother. 31. It appears from the file that the child was placed in a foster family on 26 January 2013. 32. In March 2013, at the guardian’s request, an expert examination was carried out to determine the child’s age. It found that the child was probably aged 30 months, with a margin of error of three months. 33. In addition, at the beginning of April 2013 the guardian asked the juvenile court to give the child a formal identity, so that he could be registered for school without difficulty. He stated that the child had been placed in a family on 26 January 2013, but that he did not have an official identity. This “lack of existence” had a significant impact on administrative matters: it was unclear under what name the child was to be registered for school, for vaccination records, or for residence. Admittedly, this situation corresponded to the aim of preventing the original family, that is, the applicants, from discovering the child’s whereabouts, for his own protection. However, 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. 34. By an immediately enforceable decision of 3 April 2013, the Campobasso Court of Appeal ruled in respect of the birth certificate and on whether an order should be made for it to be entered in the register of births, marriages and deaths (within the meaning of Article 95 of Presidential Decree (“DPR”) no. 396/00). It dismissed the objection raised by the guardian to the effect that the applicants did not have standing before the court; it acknowledged that the applicants had capacity to act in legal proceedings, in so far as they were indicated as the “parents” in the birth certificate that they wished to have transcribed. However, it was clear that the applicants were not the biological parents. There had not therefore been a gestational surrogacy, although the applicants had referred in their pleadings to heterologous artificial fertilisation; the parties agreed that the Russian legislation presupposed a biological link between the child and at least one of the potential parents before the term surrogate motherhood could be used. The birth certificate was therefore fraudulent (ideologicamente falso). Further, 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 Law no. 218/95, 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. In addition, it was contrary to public order to enter the particulars of the disputed birth certificate in the register of births, marriages and deaths, since it was fraudulent. 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; however, this did not alter the situation, and did not rectify the fact that the second applicant was not the biological father. In conclusion, it was legitimate to refuse to enter the particulars of the Russian birth certificate in the register of births, marriages and deaths, and to grant the State Council’s request that a new birth certificate be issued. The court 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 be given a new name (determined within the meaning of DPR no. 396/00). 35. The proceedings relating to the child’s adoption were resumed before the Youth Court. The applicants confirmed their opposition to the child’s placement with third persons. The guardian asked the court to rule that the applicants no longer had locus standi. The State Council asked the court not to rule on its request to declare that the child was available for adoption using the child’s original name, on the ground that, in the meantime, he had opened a second set of proceedings requesting that the child be declared available for adoption using his new identity as a child of unknown parents. On 5 June 2013, in the light of the material in the file, the Youth Court held that the applicants no longer had capacity to act in the adoption proceedings brought by them, given that they were neither the child’s parents nor members of his family, within the meaning of section 10 of Law no. 184/1983. The court stated that it would decide on the question of the child’s adoption in the context of the other adoption proceedings, referred to by State Council.