Surrogate Motherhood: The ECHR Ratifies the Sale of Children

About the Paradiso v Italy Case

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This week, the European Court of Human Rights condemned Italy for removing a child from a couple who bought him for 49,000 euro, and Italy was condemned to pay 30,000 euros damages.

In March 2011 in Moscow, a couple bought a child from a company specialized in surrogacy. The child’s birth certificate stated that he was the son of the Italian couple. Back in Italy, the transcription in the Italian civil registration of the Russian birth certificate was refused. An investigation was opened and a DNA test proved that the child had no genetic link with the couple. The child was simply produced to order and sold. The company said it bought human gametes and then hired a surrogate mother, which is allegedly not illegal in Russia. Italian judges, finding a violation of the standards of international adoption and of Italian public order, decided – in the interest of the child – to remove him from his buyers and to entrust him to adoption.

On application by the couple, the Strasbourg Court held, by five votes to two, that Italy could refuse to recognize the filiation established in Russia, but that the removal of the child infringed their right to private and family life. The Italian authorities should have left the child with them in the name of his best interest. The Court does not say what would have been his civil status.

To reach such a conclusion, the Court held that the relationship between the purchasers and the child constitutes a “family life” protected by Human Rights because they behaved “like parents” for six months. The Court then held that the public order prohibition of surrogacy and sale of children are not sufficient grounds to withdraw the child, considering his interest to stay with his buyers.

Buying a child gives the buyers a right on the child for the sake of the interest of the child as determined by the Strasbourg judges (who did not consult any expert). From a crime rises a right. Thus, the Court ratifies the sale of children. It must be said lucidly: the alleged “interest of the child” actually hides the judges’ own interest to impose the liberalization of surrogacy.

At no time did the Court question the morality of surrogacy, the origin of the child, the exploitation of gametes sellers and surrogate mother at the origin of his existence. The sale of this child does not shock the Court, which says without blinking that it is none of its business. It isn’t concerned about the irreparable violence against children born through surrogacy: condemned “for their own good”, according to its logic, to live with those who bought them from their real parents. In the Court’s opinion, these circumstances are not to be taken into account in the assessment of the best interest of the child. Instead, it bases its reasoning on the assumption that it is in the interest of a “surrogacy-child” to be raised by his or her buyers. One can think on the contrary that surrogacy-children will have good reasons to rebel against their buyers for having them deprived of their parents after exploiting them. Being raised by those who have made you an orphan is not tantamount to being raised by an adoptive family that receive a child in their home.

All that in the name of the right to a child. The Court, since it deals with medically assisted reproduction and homosexual adoption, does no longer want to consider the origin of children nor the family structure. To it, it’s all the same because the family is only a temporary aggregate of citizens.

This judgment is devastating, as the two dissenting judges pointed out: it negates the freedom of States to not recognize legal effects to surrogacy, and even the legitimacy of the State’s choice to ban it. Moreover, this judgment is an incentive to international children trafficking; it withdraws from States the reasons and means to prevent it.

“Human rights” should be a bulwark against indignity and exploitation of man by man. But they are misused as an instrument of a false liberation of the individual seeking satisfaction of any desire, even the desire of a 55-year-old woman to have a child, as in this case.

It is to be hoped that the Italian government will appeal, and that other governments will support it. Nevertheless, the Court has the power to dismiss the application without justification. However, perhaps the government will not appeal because the Court accompanied its judgment of a statement that seems to negate its own argument: it is not necessary to “return” the child to its purchasers because he has been living in a family since 2013. Thus, the true positive obligation resulting from this judgment is that Italy and 46 other European States shall not contest any more the life of such “families”.

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Grégor Puppinck

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