Incredible: Human Rights Court rubber-stamps surrogacy and child trafficking

1338656400000The ECtHR has released its judgment in the case of Paradiso and Campanelli v. Italy (Appl. nr. 25358/12), a case concerning surrogacy.

The facts of the case are as follows: a childless married couple from Italy travels to Russia to identify a surrogate who would give birth to a baby born of a donated egg. The child was born on 10 March 2010 and his Russian-issued birth certificate indicated – without making any mention of the surrogacy – that he was the son of the couple.

On returning to Italy, the applicants requested the transcription of the birth into the Italian register. The Italian authorities immediately refused this on the grounds that the Russian birth certificate contained false information about the name of the child’s real parents.

After establishing through a DNA test that there was no genetic link between Mr Campanelli (who says that until then he believed in good faith that his sperm had been used) and the child, an Italian Court found the child to have been abandoned and determined that custody should pass to social services. The Court considered that the applicants had brought a child to Italy in violation of international standards on adoption and in violation of Italian law.

The applicants complain, on their own as well as on the child’s behalf, about a violation of Article 8 of the European Human Rights Convention, which guarantees the right to respect for one’s private and family life.

In its decision, the Court finds that there has been a violation of this article – not through the Italian authorities’ refusal to grant transcription of the birth certificate, but through their decision to take the child away from the wannabe “parents” and place it in custody. According to the Court, that decision was “not proportionate” as it did not “sufficiently take into account the best interest of the child”.

It would be an understatement to call this reasoning misguided and inconsistent. In fact, it is much worse than that.

In the first place, it is to be noted that the Court itself, in one of its rare moments of lucidity, has found that the two applicants were not allowed to file an application on behalf of “their” child, given that they neither were the child’s biological parents nor its legal representatives. This is why their attempt to introduce an application on the child’s behalf was rejected (see § 50 of the decision).

Logically, therefore, the Court’s decision could deal only with alleged violations of the two wannabe parents’ Convention rights, not with those of the child. It is already for this reason that one fails to understand how the Court can issue a decision in favour of the two applicants that, in the end, is based solely on what it believes to be “the best interest of the child” (i.e., of a third party, rather than on the Convention rights of the actual applicants).

Second, one is left to wonder how the Court has determined what is, and what is not, “in the best interest of the child” – leaving no margin of decision for the competent national authorities. But the five judges who have made this decisions are lawyers (albeit, as it appears, not very good ones), not experts in child psychology or anything similar. What have they done to establish what is “in the best interest of the child”? Which experts have they consulted? How on Earth can they believe that they know better than others what is, and what is not, “in the interest of the child”?And why should anyone believe they have any particular expertise allowing them to make such decisions?

As it seems, the Court opines that rather than being placed into foster care, or adopted, by a couple of which at least it is clear that it consists of two good citizens who respect the law, it should better for the child to be left with a couple with whom likewise it has no biological relationship whatsoever, but who have been shown to have violated the law – solely on the ground that that couple, during six months in which they had custody, “have behaved like parents” (see § 69 of the decision). For a law court that has pretensions to be the supreme instance on human rights throughout Europe, this is certainly a very strange position to take.

If “behaving like parents” for a period of six months suffices for the Court to establish the existence of “family life”, what will be next? The non-existence of any biological link between the wannabe “parents” and the child apparently plays no role. What, then, will the Court decide when the next case is about a gay couple travelling to Thailand and simply buying a child from some poor and distressed single mother?

The third point to be concluded is, therefore, that with this decision the Court sets yet another step in its ideology driven agenda to un-link the law from outward reality and to re-define and dissolve the notion of “family life”. As has already been observed elsewhere on this website, “family life” in Article 8 according to the Court apparently has nothing to do with “family” in Article 12 of the Convention – while the first somehow seems to refer solely to some sentiments of (some of) the persons concerned, the latter clearly links “family” to a marriage between one man and one woman and, hence, to biological descent. It is thus inferred that the Convention comprises two different concepts of “family” that are in radical contradiction to each other. But it is contrary to good and sound interpretive practice to needlessly infer such self-contradictions into a legal text.

The fourth point is that the judgment offers no explanation as to what Italy could have done to act in conformity with (the Court’s interpretation of) Article 8 – except leaving the child in the custody of the wannabe “parents” with whom it has no genetic link whatsoever, who have done all to circumvent the laws of their country, and whose sole “merit” is to “have behaved like parents” during six months – a period that is certainly too short to determine whether they are better apt to care for the child than any other adoptive or foster parents. (It should be noted in this regard that the Italian authorities appear to have acted very efficiently, finding out within five days after the child’s arrival in Italy that the applicant’s claim to be “parents” was a fraud.) This means in practice that other couples cannot be prevented from acting in the same way as the applicants did – no matter how they have got hold of it, they will be allowed to keep the child towards which they have “behaved like parents”.

Thus Italy is de facto deprived of the right to make its own laws and public order respected in its own territory. Instead it is the Russian laws that prevail in Italy – laws that, as it appears, allow parents to get children “made” for them, using the sperms and egg-cells of complete strangers who remain totally unknown. (If that is acceptable to the Court, what would be deemed unacceptable???). The Human Rights Court, on other occasions eager to present its case law as being in line with the legislation and moral conviction of a majority of Convention States, appears strangely indifferent to the fact that Russia is alone in the world to have such laws, whereas Italy is not at all alone in maintaining that giving practical effect to such laws would be clearly against its ordre public and therefore completely inadmissible. This seems to be a recurrent theme in the ECtHR’s case-law: the more unethical a country’s laws are, the more likely it is that practical effect will be given to them. What was true for abortion remains true for surrogacy.

The ECtHR’s decision sets a nasty precedent for a case that the Italian Constitutional Court has decided a few weeks ago, the only difference being that in that case the child had remained in the custody of its wannabe “parents” for four years, whereas in the present case it was only six months. So, if that other case is brought to the ECtHR, how will the Court decide?

The cherry on the cake is that the lawyer who was allowed to represent the two wannabe “parents” before the ECtHR is nobody else than Konstantin Svitnev, the founder and owner of the surrogacy agency to whom the couple had paid around 45.000 Euro for finding a surrogate mother and an egg-cell donor. (Readers of this blog know Mr. Svitnev from a previous post.) It is bad enough that a man whose business stands in so radical contradiction to fundamental ethical principles is not disbarred from acting as a lawyer before a Court that (as we have come to see once again, quite absurdly) claims to be the supreme guardian of morality on this continent – but in this case, the absurdity is pushed to a completely new level, given that Mr. Svitnev actually appears to have committed a serious fraud against his own clients, making them believe that Mr. Campanelli was the biological father of the child (which actually turned out not to be the case).

The decision evidences, for the umpteenth time, the complete and irredeemable ineptitude of the ECtHR to fill out the role to which it aspires: to be the supreme guardian of principles and values that should be common to all mankind. This judgment is more than a mere miscarriage of justice, as it is hard to believe that it could have been made in good faith. Two judges, Guido Raimondi (Italy) and Robert Spano (Iceland) have saved their own honour, albeit not that of the Court in which they serve, by issuing a dissenting opinion in which they summarize the absurdity of the majority’s decision:

“Nous soulignons que l’article 8 § 1 ne peut pas, à notre avis, être interprété comme consacrant une « vie familiale » entre un enfant et des personnes dépourvues de tout lien biologique avec celui-ci dès lors que les faits, raisonnablement mis au clair, suggèrent que l’origine de la garde est fondée sur un acte illégal en contravention de l’ordre public.”

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