One of the most appalling miscarriages of the European Court of Human Rights (ECtHR), a Chamber Judgment through which the Court’s Second Chamber would de facto have turned surrogacy and illegal child trafficking into a “human right” has fortunately been overturned: a Grand Chamber of the Court that has reviewed the case Paradiso and Campanelli v. Italy today found that – contrary to the Chamber’s assessment one year ago – the decision of Italian authorities to withdraw from the custody of an Italian couple a child that was not biologically related to either of them, but which they had bought from a Russian “reproduction clinic” for the price of 45.000 Euro, did not violate anyone’s “human rights”.
Lamentably, there are still some die-hards among the Court’s activist judges, who apparently continue to believe that the buying and selling of children should be legal, and that States should have no possibility to effectively prevent it: five of the 17 judges dealing with the case issued a dissenting opinion to that effect. Nevertheless, today’s decision has at least set some limits to the “anything-goes-mentality” of certain wannabe parents and their child-suppliers.
The decision also sets a limit, albeit a very unambitious one, to the Court’s rather expansive interpretation of the term “family life” in Article 8 of the European Human Rights Convention: we learn from it that the relationship between a kidnapped child and its kidnappers (or, in this case, a child that has been purchased from a reproduction clinic and the persons who have purchased it) does not constitute “family life” – at least when it has been under their control only for a couple of weeks.
Thus, a truly incredible judicial misdeed has been corrected. However, to repair the ECtHR’s badly damaged reputation it will be necessary that the Court, rather than just refraining from actively promoting abominations such as surrogacy and child trafficking, begins to play a more active role in fighting against them. In particular, it is to be reminded that in a series of judgments the Court has appeared to give moral support to surrogacy at least in cases where the child is biologically related to at least one of the parents. While it is undeniable that in such cases there is a family relationship between the child and the biological parent that needs to be recognized (while there is of course no such relation to the second wannabe “parent”), it remains that the practice of surrogacy is as such an abomination, as it commercializes the female body and in many cases deprives the child of its right to now, and have contact to, one of its actual parents. The ECtHR has so far failed to provide an answer how States may effectively fight against this very grave attack on human dignity without risking to be themselves condemned for alleged human rights violations.