While yesterday’s ECtHR decision on the case of Paradiso and Campanelli v. Italy certainly is a positive development in that it corrects one (alas, only one of many!) of the Court’s most grotesque misjudgments of recent memory, it still is a weak decision: one gets the impression that the Court is simply trying to silently creep away from its grave responsibility for having accepted, or even promoted, the truly abominable practice of surrogacy, through which not only human gametes, but even full-grown human beings are turned into tradeable commodities. The Grand Chamber thus frames the matter in a way as if the all-decisive question were it were the “margin of discretion” that Italy and other countries enjoy in prohibiting surrogacy and enforcing such exhibition: and – surprise, surprise! – it has discovered that that margin is greater than the judges of the Second Chamber had believed it was.
Will this really suffice to restore the Court’s credibility, which among those who have a serious-minded outlook on human rights is below zero?
Even worse, there is still a number of judges in this wretched Court (six of them within the Grand Chamber that decided the case, and an unknown number outside it, who, if they had been part of that body, might have supported the views expressed in the dissenting opinion submitted by those six) who still think they can continue in the old way, i.e. pretending not to deal with the issue of surrogacy as such, but de facto supporting and promoting it.
But there also is a silver lining: four of the 11 judges who voted against finding a violation – De Gaetano, Pinto de Albuquerque, Wojtyczek and Dedov – have written a concurring opinion that is truly brilliant. This is the first time that judges of the ECtHR express in a clear and unambiguous manner what any decent person must be compelled by conscience to say about surrogacy: prohibiting surrogacy is not just a question of Convention States’ “margin of appreciation”, but it is a moral duty and, in addition, an obligation under international law.
The Russian judge Dmitry Dedov even added some thoughts of his own – which is highly significant, because it was Russia’s ultra-“liberal” (absence of) regulation of surrogacy that ultimately made it possible for the Italian couple to travel to Moscow and have a child “made” at their behest, which then they would purchase fore around 50.000 Euro.
Here are some of the best parts of the joint Concurring Opinion:
The application of Article 8 requires a careful definition of that provision’s scope of application. According to the judgment, the existence or non-existence of family life is essentially a question of fact, depending upon the existence of close and constant personal ties(…). In our view, the proposed formula is simultaneously both too vague and too broad. The approach seems based on the implicit assumption that existing interpersonal ties should enjoy at least prima facie protection against State interference. We note in this respect that close and constant personal ties may exist out of the scope of any family life. The reasoning does not explain the nature of those specific interpersonal ties which form family life.
The various provisions of the Convention must be interpreted in the context of the entire treaty and of other relevant international treaties. It follows that Article 8 must be read in the context of Article 12, which guarantees the right to marry and to found a family. Both Articles should also be placed against the backdrop of Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights.
The emphasis placed on the natural and fundamental character of the family in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights positions the family among the most important institutions and values to be protected in a democratic society. Furthermore, the wording and the structure of Article 23 of the ICCPR as well as the wording of Article 12 of the Convention clearly link the notion of family with marriage. In the light of all the above-mentioned provisions, a family is to be understood a natural and fundamental group unit of society, founded primarily by the marriage between a man and a woman. Family life encompasses, in the first place, ties between spouses and between parents and their children. Through marriage the spouses not only enter into certain legal obligations, but also opt for the legal protection of their family life.
It is not possible to establish the existence of family life without examining the manner in which the interpersonal links have been established. This element should be assessed both from a legal and moral perspective. Nemo auditur propriam turpitudinem allegans. The law cannot offer protection to faits accomplis in violation of legal rules or fundamental moral principles.
In the instant case the links between the applicants and the child were established in violation of Italian law. They were also established in violation of international adoption law. The applicants concluded a contract commissioning the conception of a child and his gestation by a surrogate mother. The child was separated from the surrogate mother with whom he had begun to develop a unique link (…). Furthermore, the possible effects on the child of his unavoidable separation from the persons who had been caring for him for some time must be attributed to the applicants themselves. It is not acceptable to invoke detrimental effects resulting from one’s own illegal actions as a shield against State interference. Ex iniuria ius non oritur.
The approach adopted by the majority is not persuasive in that the existence of a parental project is considered as an argument in favour of protection, irrespective of the illegal nature of the specific project recognised in the reasoning. The fact that the applicants acted with premeditation in order to circumvent domestic legislation serves only to undermine their position. In the circumstances of the instant case, the existence of a “parental project” is in reality an aggravating circumstance.
It cannot be claimed that what is at stake is the right to respect for the applicants’ decision to become parents. What is stake is not their decision to become parents as such, but the manner in which they went about trying to achieve that goal. The State did not interfere with the applicants’ decision to become parents, but only with the implementation of the applicants’ decision to become parents in violation of the law.
Article 8 is not intended to protect against any acts which affect a person, but against specific types of acts which amount to an interference within the meaning of this provision. In order to establish the existence of an interference with a right, it is necessary to establish first the content of the right and the types of interference it protects against. In conclusion, the reasoning adopted by the majority leaves it unclear what exactly is entailed by private life, what is the scope of the protection of the right recognized in Article 8, and what constitutes an interference within the meaning of Article 8. We regret that the reasoning refrained from clarifying these notions.
Indeed, the ECtHR’s jurisprudence on Article 8 in recent years has been gravely deficient in that it extravagantly expanded the scope of what the notion of “private life” might include (or encompass, enshrine … etc.), while at the same time affirming that the term did not “lend itself to a clear definition”. This is a matter that urgently needs to be addressed if the Court’s case-law is not to degrade into pure subjectivism.
Finally, the joint Concurring Opinion also has this to say:
The Court rightly states (in paragraph 202) that it “accepts that, by prohibiting private adoption based on a contractual relationship between individuals and restricting the right of adoptive parents to introduce foreign minors into Italy to cases in which the rules on international adoption have been respected, the Italian legislature is seeking to protect children against illicit practices, some of which may amount to human trafficking”.
The child in the instant case has been indeed a victim of human trafficking. He was commissioned and purchased by the applicants.
Th four judges then go on to explain that there actually is a body of international human rights law that prohibits child trafficking, but which the ECtHR seems to blithely ignore in all its surrogacy decisions so far:
Firstly, it is necessary to refer here to the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption. Under Article 2 of this treaty, an adoption within the scope of the Hague Convention takes place only if the required consents have not been induced by payment or compensation of any kind and have not been withdrawn.
Secondly, Article 35 of the Convention on the Rights of the Child is of relevance in the instant case. It stipulates: “States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”
This provision has been complemented by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. We regret that this Protocol has been omitted in the part of the judgment listing the relevant international instruments. It stipulates:
States Parties shall prohibit the sale of children, child prostitution and child pornography as provided for by the present Protocol.
For the purposes of the present Protocol:
(a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration; …”
We note the very broad definition of the sale of children, which encompasses transactions irrespective of their purpose and therefore applies to contracts entered into for the purpose of acquiring parental rights. The above-mentioned international treaties are evidence of a strong international trend towards limiting contractual freedom by proscribing all kinds of contracts having as their object the transfer of children or the transfer of parental rights over children.
In our view, remunerated gestational surrogacy, whether regulated or not, amounts to a situation covered by Article 1 of the Optional Protocol to the Convention on the Rights of the Child and is therefore illegal under international law.
More generally, we consider that gestational surrogacy, whether remunerated or not, is incompatible with human dignity. It constitutes degrading treatment, not only for the child but also for the surrogate mother. (…) Gestational surrogacy is particularly unacceptable if the surrogate mother is remunerated. We regret that the Court did not take a clear stance against such practices.
Judge Dmitry Dedov in his separate Concurring Opinion the blatant hypocrisy of those who promote or accept surrogacy:
The phenomenon of surrogacy is itself quite dangerous for the wellbeing of society. I refer not to the commercialisation of surrogacy, but to any kind of surrogacy.
…we know that it (viz. surrogacy) has become a big and lucrative business for the “third world”.
I do not believe in surrogate motherhood as a voluntary and freely-provided form of assistance for those who cannot have children; I do not believe that this is a sincere and honest statement. Solidarity is intended to help those whose life is at stake, but not those who merely desire to enjoy a full private or family life.
The statistics and the facts of the surrogacy cases examined by this Court demonstrate that surrogacy is carried out by poor people or in poor countries. The recipients are usually rich and glamorous. Moreover, the recipients usually participate in or decisively influence the national parliament. Moreover, it is extremely hypocritical to prohibit surrogacy in one’s own country in order to protect local women, but simultaneously to permit the use of surrogacy abroad.
Reading dissenting and concurring opinions in cases such as this is always helpful in discerning those judges who have sound moral principles from those who may have read and studied a lot about “human rights law”, but who, due to the moral corruption of their character, are in fact ready to side with slave traders, murderers, and child traffickers…