by Alessia Riccioli*
C. v. Italy decision. Italy has been recently condemned by the European Court of Human Rights (henceforward ECHR) for not complying with Article 8 of European Convention of Human Rights, which guarantees the “Right to respect for private and family life” [1]. On August 31, 2023, the Court issued the C. v. Italy judgment [available in French, legal summary in English], concerning the refusal by Italian authorities to register the foreign birth certificate of a child born through a surrogacy arrangement in Ukraine in 2018. In this case, surrogacy was carried out with the egg of an anonymous donor and the sperm of the biological father. Thus, the child, born in August 2019, had no biological link with the intended mother. In September 2019, the couple asked for the registration of the birth certificate (granted by Ukrainian authorities) in the Italian civil registrar, which was denied by the registry office, since contrary to the public order. The couple filed a complaint, but both the District Court and the Court of Appeal found the request ineligible, according to the same reason provided by the registration office. The District Court denied the full transcription of the birth certificate and did not consider the alternative request for partial transcription either (albeit the positive opinion of the prosecutor himself). This position was upheld also by the Court of Appeal, declaring the request for partial transcription inadmissible on formal grounds since the plaintiffs’ original claim was different. The biological father then refiled the request for partial registration of the birth details in the civil register of another municipality (after transferring his residence), but the request was once more denied.
Surrogacy. To better understand the case, defining what surrogacy appears essential. As reported by the UN, surrogacy «refers to a form of third-party reproductive practice in which intending parent(s) contract a surrogate mother to give birth to a child». It is a widely controverse reproductive practice, especially because most states do not provide for satisfying legislation on the issue, making difficult to grant to (every) people involved an adequate degree of protection (and to this extent this case is sadly emblematic). Among European states there is no broad consensus on this practice, which is generally regarded as negative by European institutions. For instance, the paragraph n. 82 of European Parliament resolution of 13 December 2016 on the situation of fundamental rights in the European Union in 2015 (2016/2009(INI)) condemned any form of commercial surrogate motherhood. However, it does not exist a European binding ban of surrogacy (neither paid nor free) since the issue falls under the State’s margin of appreciation.
Right to respect for private and family life (Art. 8 of the Convention). Regarding the ECHR case law, the legal criteria usually taken into consideration by the Court in cases concerning gestational surrogacy arrangements is the Article 8 of the European Convention on Human Rights, concerning the private and family life, as mentioned above. According to paragraph 2 of Art. 8, national authorities are allowed to restrict the application of this right «(…) in accordance with the law and [if it] is necessary in a democratic society (…)». What the ECHR mainly implies is to evaluate whether the interference by the authorities with the applicants’ private and family life is “necessary in a democratic society” and to assess «whether the interference was in accordance with the law, pursued a legitimate aim or aims and was proportionate to the aim(s) pursued» [see: “Factsheet – Gestational surrogacy” of the Council of Europe, December 2022, briefly summarising the recent ECHR jurisprudence on the matter]. Indeed, this is the path followed by the Court to judge the case at stake.
Domestic Law: Italy. The Italian legislation provides for a total ban of the gestational surrogacy, which is a crime according to Art 12 of the Law n. 40/2004 (on the medically assisted procreation), considering the practice contrary to the public order. According to the Law 218/1995 (devoted to international private law), foreign judgments (Art. 64) and foreign acts (Art. 65) produce a legal effect at the national level only if their effects are consistent with the fundamental principles of the legal system. In addition, the legal system provides no definition of what surrogacy involves and no regulations are established concerning children actually born through this procreative practice, either in the country or abroad.
The Italian jurisprudence on surrogacy usually addresses the attempt of the parents who entered into a gestational surrogacy agreement to ask the civil registrar of an Italian municipality for partial or full registration of the details of the foreign birth certificate. As far as the identification of the mother is concerned (i.e. whether to recognize the intended mother or only the biological mother), given the lack of rules on the issue, the main reference for defining maternity is Art. 269, § 3 of the Civil Code, which provides for the recognition of the biological mother on the ground of the Latin brocardo: mater semper certa est. In the Judgment n. 38162/2022, the Court has been called to decide upon the recognition of the relationship between the child and the intended parent. Here, the Court took the opportunity to re-underline the ratio behind the ban on surrogacy (Zamperini). Finally, the National Bioethics Committee has also definitively condemned surrogacy, albeit only with reference to paid surrogacy [National Bioethics Committee’s motion, 18 March 2016].
The case. In the case C. v. Italy, the ECHR evaluated whether the authorities’ interference was balanced, which means assessing, first, whether the interference is consistent with national laws and, second, whether there was the “necessity in a democratic society” that Article 8 requires to justify the interference itself.
As mentioned above, the rejection of the full registration request was indeed consistent with the law since surrogacy is banned in Italy. Instead, the second issue embodied two questions: a) the establishment of the legal parent-child relationship between the applicant and the biological father and b) the establishment of the legal parent-child relationship between the applicant and her intended mother. Given the lack of consensus on surrogacy in Europe, the recognition of the legal relationship between the child and the intended parent fell within the States’ margin of appreciation. However, the refusal to establish the legal relationship between the child and the biological father is a blatant violation of Article 8. Regarding ECHR jurisprudence, in the Mennesson judgment the Court issued a similar ruling, whereby the Court evaluated under Article 8 of the Convention the refusal by French authorities to recognize the legal relationship for two girls born in California through GPA and their biological father, as it was already legally established in the United States. In that case, the Court concluded that there had been a violation of the children’s right to respect for their private life, emphasizing that «(…)respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship (…)» and that «(…) an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned (…)» (§ 96 of the Mennesson judgment, as cited also in § 46 of the C. v. Italy decision).
According to the Court’s jurisprudence, domestic law must provide for the recognition of the legal relationship between a child born through a surrogacy arrangement abroad and the intended father whenever he was the biological father. Otherwise, there is a violation of the child’s right to respect for his or her private life as guaranteed by that provision.
The Court has consistently upheld this view also in other decisions, which have been considered in the C. v. Italy case, such as Labassee v. France and D v. France cases, and its Advisory Opinion P16 2018 001. In the latter, the parameter of the best interests of the child had been violated by Italy in two ways: first, the refusal of recognition of the legal relationship between the child and the biological father (even if the legal means chosen by the State are not within the Court’s jurisdiction, as they concern the appreciation of States). Second, the decision-making process of the child’s State of residence, as a whole, must provide for an adequate protection of the interests at stake. Therefore, it is paramount that the domestic law provides for a procedure which is prompt and effective in order to prevent a position of legal uncertainty of the child, in accordance with the child’s best interests. The ECHR held that the national courts had not properly assessed all the different interests involved, disregarding the applicable procedural requirements of promptness and effectiveness. In its decision, the Court defined the criteria Courts had to follow to comply with that requirements: a) domestic courts should judge free of excessive formalism in order to better accomplish the aim of the child’s best interests, independently of any procedural flaws and b) judges were required to cooperate with the parties to find the best legal solutions available, regardless of their specific requests (§ 68).
Finally, despite the State’s margin of appreciation on the issue, the Court holds that «les autorités italiennes ont failli à l’obligation positive de garantir le droit de la requérante au respect de sa vie privée auquel elle a droit en vertu de la Convention. Partant, il y a eu violation de l’article 8 de la Convention sur ce point» (§ 68, 2° part).
By contrary, as far as the establishment of the legal relationship between the intended mother and the child was concerned, the Court found no violation of Article 8 had occurred, since the Court has considered that a legal acknowledgment of this relationship could eventually be achieved through the adoption, according to the Law 184/1983, Art. 44, lett. b).
Conclusion. In conclusion, surrogacy motherhood remains a controversial issue, on which European states have not yet found a common legal solution. As far as Italy is concerned, the debate on the issue is still heated. The right-wing executive have recently proposed to label surrogacy as a “universal crime”, which seems to be «the natural and hasty outcome of a superficial and ideological political discussion» (Zamperini). In addition, part of the debate focuses on the risk of supporting a transnational reproduction market. It is not unanimous whether this practice is consistent with women sexual self-determination or, by contrary, represents another form of women subalternity (Niccolai). What is clear, however, is that a proper regulation on the issue remains crucial. The prohibition of this practice is not broad enough to protect all interests involved.
*PhD Candidate, University of Pisa
