‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Wednesday, 25 January 2017

Removal of a child born from gestational surrogacy

Grand Chamber judgment - case of Paradiso and Campanelli v. Italy - no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
From the Court's press release:

The case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract, entered into with a Russian woman by an Italian couple who had no biological relationship with the child. Having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Court held that a family life did not exist between the applicants and the child. It found, however, that the contested measures fell within the scope of the applicants’ private life.

The Court considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children.

The Court then accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the room for manoeuvre (“margin of appreciation”) available to them.
"179. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Parrillo v. Italy [GC], no. 46470/11, § 168, ECHR 2015; S.H. and Others v. Austria, cited above, § 91; and K. and T. v. Finland, cited above, § 154).
180. In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see S.H. and Others v. Austria, cited above, § 92, and Olsson v. Sweden (no. 1), 24 March 1988, § 54, Series A no. 130). Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating the complex and sensitive matter of the relationship between intended parents and a child born abroad as a result of commercial surrogacy arrangements and with the help of a medically‑assisted reproduction technique, both of which are prohibited in the respondent State.
181. According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (see A, B and C v. Ireland, cited above, § 229). In determining whether an interference was “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (see X, Y and Z v. the United Kingdom, cited above, § 41).
182. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention (see, among many other authorities, S.H. and Others v. Austria, cited above, § 94; and Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans, cited above, § 77). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Evans, cited above, § 77; and A, B and C v. Ireland, cited above, § 232). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson, cited above, § 78).
183. While the authorities enjoy a wide margin of appreciation in the area of adoption (see Wagner and J.M.W.L., cited above, § 128) or in assessing the necessity of taking a child into care (see Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002‑I), in particular where an emergency situation arises, the Court must still be satisfied in the particular case that there existed circumstances justifying the removal of the child (see Zhou v. Italy, no. 33773/11, § 55, 21 January 2014).
184. As regards the Court’s recognition that the States must in principle be afforded a wide margin of appreciation regarding matters which raise delicate moral and ethical questions on which there is no consensus at European level, the Court refers, in particular, to the nuanced approach adopted on the issue of heterologous assisted fertilisation in S.H. and Others v. Austria (cited above, §§ 95-118) and to the analysis of the margin of appreciation in the context of surrogacy arrangements and the legal recognition of the parent-child relationship between intended parents and the children thus legally conceived abroad in Mennesson (cited above, §§ 78-79)."
Judges Lazarova Trajkovska, Bianku, Laffranque, Lemmens and Grozev expressed a joint dissenting opinion:
"12. Whatever the reasons advanced to justify the removal of the child from the applicants, we cannot agree with the majority’s conclusion that the Italian courts struck a fair balance between the various interests at stake.
With respect to the public interests at stake, we have already explained that, in our opinion, too much weight has been attached to the need to put an end to an illegal situation (in view of the laws on inter-country child adoption and on the use of assisted reproductive technology) and the need to discourage Italian citizens from having recourse abroad to practices which are forbidden in Italy. These interests were simply not those that the Court of Appeal sought to pursue.
With respect to the interest of the child, we have already noted that we are surprised by the characterisation given to the child’s situation as one of being in a “state of abandonment”. At no point did the courts ask themselves whether it would have been in the child’s interest to remain with the persons who had assumed the role of his parents. The removal was based on purely legal grounds. Facts came into play only to assess whether the consequences of the removal, once decided, would not be too harsh for the child. We consider that in these circumstances it cannot be said that the domestic courts sufficiently addressed the impact that the removal would have on the child’s well-being. This is a serious omission, given that any such measure should take the best interest of the child into account (see paragraph 6 above).
With regard to the interests of the applicants, we believe that their interest in continuing to develop their relationship with a child whose parents they wished to be (see paragraph 211 of the judgment) has not been sufficiently taken into account. This is particularly true for the Minors Court. We cannot agree with the majority’s accommodating reference to that court’s suggestion that the applicants were fulfilling a “narcissistic desire” or “exorcising an individual or joint problem”, and to its doubts about the applicants’ “genuine affective and educational abilities” and “instinct of human solidarity” (see paragraph 207 of the judgment). We find that such assessments were of a speculative nature and should not have guided the Minors Court in its examination of the Public Prosecutor’s request for urgent measures.
Apart from this treatment by the Minors Court, which seems to have been corrected by the more neutral approach of the Court of Appeal, we would like to recall that the applicants had been assessed as fit to adopt on 7 December 2006, when they received the authorisation to adopt from the Minors Court (see paragraph 10 of the judgment), and that a court-appointed team of social workers in a report of 18 May 2011 had found that the applicants cared for the child “to the highest standards” (see paragraph 25 of the judgment). These positive assessments were not contradicted on the basis of a serious assessment of the best interests of the child, but rather swept away in the light of more abstract and general considerations.
Moreover, as the majority admit, the courts did not address the impact which the immediate and irreversible separation from the child would have on the applicants (see paragraph 211 of the judgment). We find this a serious shortcoming, which cannot be justified by the majority’s consideration that the applicants’ conduct was illegal and their relationship with the child precarious (ibid.). The mere fact that the domestic courts did not find it necessary to discuss the impact on the applicants of the removal of a child who was the specific subject of their parental project demonstrates, in our opinion, that they were not really seeking to strike a fair balance between the applicants’ interests and any opposing interests, whatever these might have been.
13. Having regard to the above, we are therefore, like the Chamber, not convinced that the elements on which the courts relied in concluding that the child ought to be removed from the applicants and taken into the care of the social services were sufficient to conclude that these measures were not disproportionate (see the judgment of the Chamber, § 86).
In our opinion, it has not been shown that the Italian authorities struck the fair balance that had to be maintained between the competing interests at stake." 

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