Dragan DakićRecently the European Court of Human Rights (“Court”) delivered a decision in the case Paradiso and Campanelli v. Italy. The applicants - who were Italian nationals - after unsuccessful in vitro fertilisation treatments decided to try resorting to assisted reproduction techniques and to a surrogate mother in Russia. The child was born in Moscow in 2011 and arrived to Italy a few months later. The Italian authorities refused to register the Russian birth certificate and the child was removed from the applicants. The Court reduced its analysis to the notion of “private life”, inherent in the Article 8 of the European Convention. What is really striking with the reasoning is the omission of the Court to recognize the relevance of the international law instruments designed against human trafficking.
On 24th January 2017 Grand Chamber of the European Court of Human Rights (“Court”) delivered verdict in the case Paradiso and Campanelli v. Italy. Applicants were Italian nationals who after unsuccessful in vitro fertilisation treatments and long-lasting adoption procedure decided to try resorting to assisted reproduction techniques again and to a surrogate mother in Russia. Allegedly, Mrs Donatina Paradiso brought semen of her husband Mr Giovanni Campanelli with her to Russia. The child was born in Moscow on 27 February 2011 and arrived in Italy on 30 April 2011. During the procedure, Italian authorities refused to register the Russian birth certificate and the child was removed from applicants. Although Russian fertility clinic issued confirmation, the result of DNA tests showed that there was no genetic link between applicants and child. National courts established that the applicants paid approximately EUR 50,000 to receive the child and qualified paperwork associated with registration and transfer of the child as if it was fraudulent.
Issue that was discussed in the present case before European Court of Human Rights refers to the measures taken by the Italian authorities that resulted in the permanent separation of the child and the applicants. Accordingly, the discussion was developed within the frameworks of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (5 October 1961), the United Nations Convention on the Rights of the Child (20 November 1989), Principles of the Council of Europe Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (1989), the Hague Convention on Protection of Children and Co‑operation in Respect of Inter-country Adoption (29 May 1993), and the work of the Hague Conference on Private International Law. The Court decided to reduce its analysis of the whole matter only to the notion of “private life” inherent in the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”). The lack of biological link and/or short duration of the cohabitation are presenting arguable criteria to justify preclusion of the notion “family life” in the case concerned.
But what is really confusing with instant case is the omission of the Court to recognize relevance of the international law instruments designed against trafficking such as Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (25 December 2003), the Council of Europe Convention on Action against Trafficking in Human Beings (1 February 2008), the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (18 January 2002 “Optional Protocol”) since European Convention cannot be interpreted “in a vacuum” but rather in an international context. This omission was noted in the concurring opinion of Judge Raimondi who also pointed to the relevance of the Article 35 of the Convention on the Rights of the Child (as well as to the relevance of the Articles 1 and 2 of the Optional Protocol) which reads:
“States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”
Like him, Judge Dedov in his concurring opinion also recognizes that “the facts of this case clearly demonstrate how easily human trafficking might be formally represented as (and covered by) a surrogacy arrangement.”
The reason to consider this omission unexplainable arises from the legally relevant facts of the case. Namely, based on the undisputable evidences we can be only positive that Mrs Paradiso paid approximately EUR 50,000 for the child and false documents that enabled her to transfer the child of unknown parents from Russia to Italia. Also, we can be sure that the child was well taken care of. According to the report of social workers dated 18 May 2011, he was “in excellent health and his well-being was self-evident, since he was being cared for by the applicants to the highest standards”. Now, I have allocated two certified circumstances of the analyzed event. Those are (1) payment for the child and his (2) transfer from unknown parents and fertility clinic to the applicants. Both of these conducts are prohibited under the the Optional Protocol. According to the Article 2 (a) of the Optional Protocol “sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”. No need to say that State Parties are obliged to prohibit described conduct.
Specific feature of the instant transaction is in the fact that it occurred based on the noble motives. Namely, the purpose of the child’s transfer from the perspective of customers was parental project. Therefore, motives were very noble and perhaps child benefiting. However, noble motives are not sufficient to preclude international law incrimination of the conduct concerned. As we have seen the Optional Protocol prohibits numerous of acts qualified as sale of children which is considered for exploitation in itself. From the eye of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, it is so even if the parents or single parent choose for their/her/his children to be trafficked due to the interests of the child. This reasoning rests on the logic that nobody can have ownership over humans regardless to their age or packaging (in vitro or in vivo). Otherwise children would be reduced to mere objects.
Peril of the described judicial omission is artificial separation between human rights guarantees and the norms of the International Criminal Law. Suchlike separation has potential to introduce possibility of human rights legitimization of the conducts that were clearly prohibited under the binding norms from the related branch of law. Consequently, it could pose the conflict between obligations that Contracting States have under different international law instruments. If some future case appears where biological interconnection between the child and one of the applicants truly exists, where cohabitation was little longer and where administrative part of the job was done more professionally, removal of the child could amount infringement of the applicants right to respect for private, and perhaps even family life. Regardless to the fact that child was purchased i.e. trafficked. Paradoxically, someone could be held criminally accountable for trafficking, simultaneously State could not take away purchased child from offender without violation of his/her human rights. Also, suchlike narrow reasoning does not inspire confidence in the Court’s ability to resolve more demanding contemporary tasks in the field of biomedicine. Based on the reasoning as applied in instant case, there would be nothing wrong from the human rights perspective with trafficking of in vitro embryos although it has all the elements of the prohibited crime.
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The views expressed above belong to the author and do not necessarily represent the views of the HAS Centre for Social Sciences.