Of course we all know that trade in human beings is a very serious crime, not a right. Of course we all know that this also applies to babies that are fabricated in vitro with the use of sperms and ova procured from so-called “donors”, and then carried by so-called “surrogate mothers”. Of course we all know that a couple that purchases a child in that way cannot have a “human right” to keep that child in its custody.
We really do not need a pompous “Human Rights Court” to tell us this, do we?
Tomorrow, 9 December, a Grand Chamber of the European Court of Human Rights (ECtHR) will hear the case of Paradiso and Campanelli for a second time, following a request by the Italian government to annul a judgment in which a Chamber of the Court had de facto legalized child trafficking and surrogacy. Even against the backdrop of the Courts steady and persistent decline into judicial activism and moral disorientation, this was certainly one of the most stunning miscarriage of justice we had seen for a number of years.
- The applicants, a married couple from Italy, had purchased a child from a fertility clinic in Moscow at the price of 45.000 Euro. For this price, the owner of the clinic, a certain Mr. Svitnev, had committed to procure them a child, “success guaranteed”.
- Given the wannabe “mother”‘s known infertility, it had been agreed to use donated egg cells from another woman and the wannabe “father”‘s sperm to fabricate a child in vitro, which was then to be carried to term by a surrogate mother. However the wannabe “father”‘s sperm was lost or inept, and the clinic therefore used the sperm of an unknown “donor”. It did so without informing the wannabe “parents”. The child resulting from the procedure was therefore in no way biologically related to the wannabe “parents”.
- The Italian authorities started to investigate the case immediately after the wannabe “parents” had brought the child to Italy, i.e. just a few weeks after its birth. After finding out the circumstances of the birth, they decided that the child, having been made the object of an illicit (and indeed criminal) trade by its wannabe “parents”, with whom it had no biological relationship at all, had to be taken into State custody. It was then given into foster care, and is now awaiting adoption.
- The two applicants claimed that this decision to withdraw the child from their custody was a violation of their right to “respect for private and family life”, because they had been acting as social parents for several months, during which they and the child had grown mutually accustomed to each other. In other words, they claimed that they were entitled to keep the child they had bought in Moscow.
- The Chamber judgment of the ECtHR upheld this claim, affirming that it had been disproportionate for the Italian authorities to withdraw the child from the applicants’ custody.
- Very absurdly, the judgment is not based on any of the applicants’ rights. Instead it is based solely and exclusively on an alleged violation of the child’s right to respect for its family life – even though the same judgment found that the child was not a party to the proceedings. As a result, the Court ordered the Italian State to pay compensation to the applicants in consideration to an (alleged) damage that not they, but a third person (i.e., the Child), had suffered. This was in complete contradiction to the most basic legal principles.
- Furthermore, the Court found that six months in the custody of its wannabe “parents” had created a “de-facto-family-relationship” for the child, which the Italian authorities should have recognized and respected. The child was never heard on this, nor did the Court hear any experts in child psychology. Instead, the Chamber judges found their own “expertise” sufficient to come to this conclusion.
- Even more absurd is the Court’ s acceptance of Mr. Svitnev, the Russian surrogacy impresario with a lawyers’ diploma, as the applicants’ legal counsel.
It is clear from the above that neither this judgment nor the Court from which it emanates respect anything else than ridicule and contempt. The review by the Grand Chamber offers the Court an occasion to correct its error and save its face. Predictably, it will do its best to use this occasion; but it will of course do so in a manner that still leaves all doors open for itself to continue promoting its absurd and dangerous social agenda. Therefore it will not condemn, as it should, the lamentable practices of in-vitro-procreation, surrogacy, and child trafficking;nor will it clarify the meaning of “family life”.
instead it will simply find that in the specific case the “de-facto-family-relationship” was not yet sufficiently developed to justify the finding of a violation of Article 8. This will suffice to make the Italian Government happy, so there is no need to make any fundamental amendments…
Whatever the Court does tomorrow will be done solely to save its own face. But for all of us who stand by and watch it should be clear that this institution is, and remains, completely discredited.