This report is contributed by Robert Clarke of Alliance Defending Freedom.
Recently, the European Court of Human Rights issued a judgment in Paradiso and Campanelli v. Italy, which reveals a lot about the shady world of surrogacy. The court ruled that Italy was able to deny registering a child to an Italian couple because the child was born by a surrogate mother in Russia and had no biological genetic link to the couple.
Although the ECHR found a violation of the right to private and family life, the court ultimately did not believe that Italy’s refusal to transcribe the birth certificate violated Article 8. The court reasoned that interpreting national legislation is primarily the job of national courts. This must have come as a blow to the Russian agency which was paid €49,000 for the child and to ‘compensate’ the unnamed female surrogate.
But what isn’t immediately evident in reviewing this case, is that the lawyers representing the couple are the same lawyers that made the surrogacy arrangements in Russia on the couple’s behalf. Trading under the relatively innocuous name “Rosjur Consulting,” the surrogacy group describes themselves as specialized in the “legal support of surrogate motherhood and comprehensive, customized surrogacy programmes.” They also boast that their specialists can “help you find a surrogate mother [and] provide legal support… up to the receipt of a birth certificate.” So it makes sense that they would be the lawyers behind this case seeking a birth certificate that doesn’t represent the biological reality – this is their business. And therein lies the problem.
Italy has long had a policy prohibiting surrogacy, believing that the best environment for a child is to be raised by their biological mother and father. Italy’s law is grounded in the fact that commercializing a woman’s body is both wrong in principle and deeply problematic in practice. This case shows the practical and ethical problems that can come from such a situation.
In this case, the child was born of a purchased egg which the husband was misled to believe by the Russian agency had been fertilized by his sperm. Therefore, he was shocked when DNA tests ordered by Italian authorities revealed that the child was in fact not biologically related to him or his partner who were named on the child’s birth certificate.
What happens if parents find out when registering a child that he or she is not theirs biologically, despite their agreement with an agency abroad? Can they obtain a refund? Or sue the agency for negligence? Should a child grow up knowing that he or she is not quite what their parents ordered and paid for? And what do we make of an agency that misleads its customers and then acts as their lawyers in a case in which they have a vested interest?
We shouldn’t have to answer these questions. But unfortunately, these are the questions we will face if we allow the human body to become a commercial vehicle used to buy and sell children as commodities because of some false sense of entitlement.
–Robert Clarke is litigation staff counsel with Alliance Defending Freedom in Vienna, Austria.
Alliance Defending Freedom is an international, alliance-building legal organization that advocates for religious freedom, the sanctity of life, and marriage and the family in numerous courts and consultative bodies worldwide.