European Court of Human Rights Decision Re: Italian Couple’s Surrogacy Arrangement

January 27, 2015 – From the Press release of the European Court of Human Rights Re: Paradiso and Campanelli v. Italy

In today’s Chamber judgment1 in the case of Paradiso and Campanelli v. Italy (application no. 25358/12) the European Court of Human Rights held, by a majority, that there had been:

a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

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 by a couple; it subsequently transpired that they had no biological relationship with the child.

The Court found in particular that the public-policy considerations underlying Italian authorities’ decisions – finding that the applicants had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption – could not take precedence over the best interests of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him. Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the Court considered that, in the present case, the conditions justifying a removal had not been met.

However, the Court’s conclusions were not to be understood as obliging the Italian State to return the child to the applicants, as he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Principal facts

The applicants, Ms Donatina Paradiso and Mr Giovanni Campanelli, are Italian nationals who were born in 1967 and 1955 respectively and live in Colletorto (Italy). They are husband and wife.

After unsuccessfully attempting to use in vitro fertilisation Ms Paradiso and Mr Campanelli opted for a gestational surrogacy arrangement to become parents. For that purpose they entered into an agreement with the company Rosjurconsulting in Russia. A surrogate mother was found and given in vitro fertilisation and a baby was born on 27 February 2011 in Moscow. In accordance with Russian law, Ms Paradiso and Mr Campanelli were registered as the baby’s parents, without any indication that the child had been born through a surrogacy arrangement.

In April 2011 the Italian Consulate in Moscow delivered documents allowing the child to leave for Italy. A few days after their arrival in Italy, Mr Campanelli unsuccessfully asked the municipal authority of Colletorto to register the birth. The Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Collerorto municipality that the file on the child’s birth contained false information.

On 5 May 2011 Ms Paradiso and Mr Campanelli were charged with “misrepresentation of civil status”, and violation of the adoption legislation, in that they had brought the child to Italy in breach of Italian and international law and without complying with the authorisation to adoption obtained by them in December 2006, which ruled out the adoption of such a young child. On the same date the public prosecutor at the Campobasso Minors Court requested the opening of proceedings to free the child for adoption, since, for the purposes of Italian law, he had been abandoned.

In August 2011 a DNA test revealed that Mr Campanelli was not the child’s biological father. Gametes from other sources must have been used in the course of the fertilisation procedure. In consequence, the minors court decided on 20 October 2011 that the child should be removed immediately from the applicants and placed under guardianship, on the ground that there was no biological relationship between them and that there existed doubts as to the applicants’ child-raising and emotional capacities, the conduct of Ms Paradiso and Mr Campanelli having been contrary to the law. The baby was placed in a children’s home, without Ms Paradiso and Mr Campanelli being informed of his location or allowed any contact, then in January 2013 the baby was entrusted to foster parents. In addition, he was left without a formal identity.

In April 2013 the refusal to register the Russian birth certificate was confirmed on the ground that its registration would be contrary to public policy, given that the certificate was inaccurate, there being no biological relationship between the child and the applicants. The latter unsuccessfully submitted that they had acted in good faith, and claimed to have been unaware that Mr Campanelli’s seminal fluid had not been used in the Russian clinic.

In April 2013 the child received a new identity, and it was indicated in the new birth certificate that he had been born to unknown parents. On 5 June 2013 the minors court declared that the applicants no longer had the capacity to act in the adoption procedure initiated by them, given that they were neither the parents nor relatives of the child.

Complaints, procedure and composition of the Court

Relying on Article 8 (right to respect for private and family life), the applicants complained, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent- child relationship established abroad by registering the child’s birth certificate in Italy.

The application was lodged with the European Court of Human Rights on 27 April 2012. Judgment was given by a Chamber of seven judges, composed as follows:

Işıl Karakaş (Turkey), President, Guido Raimondi (Italy), András Sajó (Hungary), Nebojša Vučinić (Montenegro), Helen Keller (Switzerland), Egidijus Kūris (Lithuania), Robert Spano (Iceland), and also Stanley Naismith, Section Registrar. Decision of the Court

Article 8

The Court dismissed at the outset the applicants’ complaint submitted in the child’s name, finding that they did not have standing to act on his behalf. It also dismissed, for failure to exhaust domestic remedies, the complaint submitted by Ms Paradiso and Mr Campanelli alleging that it was impossible to have the child’s birth certificate registered in Italy, as the applicants had not appealed on points of law.

With regard to the complaint concerning the child’s removal and placement under guardianship, the Court, noting the existence of a de facto family life between the couple and the child, held that Article 8 was applicable in this case and declared this complaint admissible. Although Ms Paradiso and Mr Campanelli had spent only six months with the baby, that period had covered important stages in his young life and they had behaved as parents towards him during that period.

As to the merits of the case, the Court considered, firstly, that the measures to remove the child and place him under guardianship amounted to interference in the applicants’ private life and had been in accordance with the law. Indeed, the domestic courts’ application of Italian law in concluding that the child had been abandoned had not been arbitrary, and the measures taken had been based on provisions of domestic law. In addition, the contested measures pursued the legitimate aim of “prevention of disorder”, in so far as the applicants’ conduct had been contrary to the law.

Secondly, in assessing the necessity of this interference in a democratic society, the Court was required to examine whether the application of the national law had struck a fair balance between the public interest and the applicants’ private interests, namely respect for their private and family life. In so doing, it had to have regard to the essential principle according to which, whenever the situation of a child was in issue, the best interests of that child were paramount.

On the issue of whether these interests had been taken into account by the Italian authorities, the Court noted that they had decided to remove the child in order to put an end to an unlawful situation. They had considered that by contacting a Russian agency and then bringing back to Italy a child whom they passed off as their son Ms Paradiso and Mr Campanelli had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption. According to the Italian authorities, that situation resulted from a narcissistic desire or from a wish to resolve problems in their relationship, which cast doubt on their child- raising and emotional capacities.

However, the reference to public order could not be considered as giving carte blanche for any measure, as the State had to take into consideration the best interests of the child, irrespective of the parental relationship, genetic or otherwise. The Court reiterated that the removal of a child from the family setting was an extreme measure, which could be justified only in the event of immediate danger to the child. The threshold set in its case-law in this respect was very high2.

Admittedly, the minors court had taken into account the undoubted harm in removing the child, but had considered, given the short period spent with the applicants and his young age, that he would bounce back from this difficulty. For its part, the Court considered that, although the situation before the Italian courts was a sensitive one, the conditions justifying removal had not been met. The argument that, with time, the child would have developed closer ties with his intended parents, making a possible subsequent separation even more problematic, was not sufficient to justify his removal. Moreover, Ms Paradiso and Mr Campanelli, who had been assessed as fit to adopt in December 2006, when they received the authorisation to adopt, were then held to be incapable of bringing up and loving the child on the sole ground that they had circumvented the adoption legislation, without any expert report being ordered by the courts. In addition, the child had not received his new identity until April 2013, which meant that he had had no official existence for more than two years. Yet it was necessary to ensure that a child was not disadvantaged on account

of the fact that he or she was born to a surrogate mother, beginning with citizenship or identity, which were of crucial importance3.

In consequence, the Court was not persuaded that the authorities had relied on appropriate evidence in deciding to place the child in the care of the social services. Thus, they had failed to strike a fair balance between the interests at stake, in violation of Article 8. This finding of a violation was not to be understood as obliging the Italian State to return the child to the applicants, given that he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Just satisfaction (Article 41)

The Court held that Italy was to pay the applicants 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.

Separate opinion

Judges Raimondi and Spano expressed a joint partly dissenting opinion, which is annexed to the judgment.

Lesbian couple wins right to have names on children’s birth certificates

By LAURA KEBEDE Richmond Times-Dispatch Richmond.com – January 25, 2015

When Maria Hayman delivered her twins, Merida and Finn, on June 13, 2013, at St. Francis Medical Center, there was no doubt in her mind as to who the other parent was.

Her wife, Joani Hayman, had contributed eggs that were placed in Maria after being fertilized with sperm from a donor who had revoked his parental rights.

But Joani’s name was not allowed on the children’s birth certificates because egg donors do not have parental rights, according to the Code of Virginia.

But after an 18-month game of wait-and-see as the issue of gay marriage was being settled in Virginia, Richmond Judge Designate T.J. Markow last month ordered the Office of Vital Records in the Virginia Department of Health to amend the birth certificates to show Maria and Joani as the “only parents of the children.”

The Haymans initially contemplated pursuing a custody order, or what their attorney, Colleen Quinn, says was called “LGBT two-parent protocol” in Virginia by lawyers familiar with same-sex couple cases.

Click here to read the entire article.

New Ruling: IRS Can Tax Payments To Egg Donors As Income

by Tony Nitti – Forbes Contributor – January 22, 2015

Among the many injustices life dishes out on a daily basis is the fact that many women who are actively trying to become pregnant cannot do so, while every teenager with more hormones and free time than common sense seemingly can’t keep from getting pregnant.

It’s a struggle I witnessed personally when my older sister tried unsuccessfully for years to conceive a child, her painful emotional battle reaching its nadir when an apathetic doctor explained to her that, “some women just aren’t meant to have children.”

Fourteen years and three beautiful girls later, my sister got the last laugh. But the process was far from easy, which is the reality for many women. And this is precisely why the fertility industry has become a billion dollar business.

There are no shortage of available alternatives for women struggling to get pregnant; unfortunately, they are typically intrusive and expensive. One option, which is the thrust of our discussion here, is “egg donation,” whereby a female donor is supplied with hormones that increase her egg production. The eggs are then removed, fertilized in a laboratory, and ultimately implanted in the intended recipient.

The term “egg donation” is a bit of a misnomer, however, because rarely is the egg “donated” in the traditional, altruistic sense. Rather, the donor is typically compensated, and compensated well. This, as you might imagine, has led to a rather big tax conundrum: do the amounts received by the donor in exchange for her eggs constitute taxable income?

The issue has been a huge topic of conversation on egg donor message boards (yes, there is such a thing) and in the fertility industry at large. And for good reason: because until today, there was no answer. Hours ago, however, that all changed, when the Tax Court concluded that amounts received by a donor represented taxable compensation income.

Click here to rear the entire article.

Colin Farrell Suggest Gay Couples Make Better Parents

January 21, 2015 – ontopmag.com

Hollywood actor Colin Farrell has suggested that gay and lesbian couples make better parents than their heterosexual counterparts.

Farrell appeared via satellite from Los Angeles on RTE’s Claire Byrne Live to discuss an upcoming referendum on marriage equality in his home country of Ireland.

The 38-year-old actor spoke of the bullying his brother Eamon faced growing up in Ireland and his “incredibly successful” marriage.

“He went to Vancouver and they got married and they’ve been happily married for six years, maybe seven years. They have an incredibly successful marriage,” Farrell said. “And to think they had to leave their own country to do that is sad and disappointing and just grossly unfair, I feel.”

When host Claire Byrne noted that opponents claim that allowing gay couples to marry hurts children, Farrell said it was the other way around, that the children of gay couples suffer when their parents cannot legally marry.

“Without same-sex marriage being legalized … it’s the children that are going to be left in the dark, if there’s a separation. It’s the children who won’t have the equal rights as the children of straight couples who are married. So, the children are actually going to suffer.”

“Guess what? There’s a hell of a lot of unsuccessful marriages between men and women. There’s a hell of a lot of children who have to experience day to day the arguments, the bickering, the domestic violence between their parents.”

“This is a demographic of society – gay, lesbian, transgender – who have been pilloried and who have been ostracized, who have been polarized, excluded for so long that when they get the chance to experience marriage or … parenthood, it has been kept [from] them for so long, and it is a God-given human right, and it’s too easy for heterosexuals to be parents, if you want the truth.”

Click here to read the entire article.

The IVF egg donor: ‘I knew I didn’t want children. I’ve just found out I have three’

by Joanna Moorehead – The Guardian, December 20, 2014

Vanessa Traill has never had sex, but last week she discovered she has three children: two girls and a boy. One day she’d love to meet them, but that won’t be for 15 or 20 years and Traill, 36, couldn’t be happier about that. She’s never gone a bundle on babies, and much prefers children when they’re older: in fact it was her lack of maternal instinct that led her to where she is now.

Traill is an altruistic egg donor. She’s one of a growing number of women, according to figures just released by the Human Fertilisation and Embryology Authority (HFEA), who are offering to go through the physically demanding process of having their ovaries stimulated, and the medically invasive procedure to retrieve their eggs, in order to help a woman or couple they’ve never met, and never will, to have a baby.

The new figures show that over the last five years the number of IVF cycles where fresh donated eggs are used is up by more than 50%. Among women over 45, more now use donated eggs than their own when using medical assistance to get pregnant. Other HFEA figures released at the end of October revealed that the number of women registering as altruistic donors has risen every year since 2006.

More than half of those who register are, like Traill, over 30. It was around six years ago that she first started to think about becoming a donor. “I’ve given blood all my life, and I carry an organ donor card,” she says. “So when I picked up a magazine and saw an article about egg donation I thought: ‘I could do that.’ I knew I didn’t want children, and I thought I was probably fertile – and I guess I thought, ‘I don’t want to use my eggs but if someone else can, why not?’”

Traill is gay, though she says she has never had a relationship she wanted to take to the sexual phase. But her celibate status was irrelevant to the egg donation process. When she contacted the Glasgow Centre for Reproductive Medicine(GCRM), which she says she liked the idea of being associated with because it’s connected with Glasgow University where she works as an academic teaching medieval history, staff talked her through the complicated process of giving eggs. She also had extensive fertility tests – and they showed, as she had expected they would, that she had a good egg reserve and would make an excellent donor.

Click here to read the entire article.