The European Court of Human Rights Shaping Family Life in Cross-border Surrogacy: The Paradiso et Campanelli Case

Abstract

Cross-border surrogacy has become increasingly common: people from countries where surrogacy is forbidden make recourse to it abroad. Yet, the home country’s ban on surrogacy may prevent the continuity of the family status established abroad. Such cases have been brought also before the European Court of Human Rights for the alleged violation of Article 8 of the European Convention on Human Rights. The judgment that the Grand Chamber issued in the Paradiso et Campanelli c. Italie case is significant for the interaction between the determination of family life and the technological nature of modern surrogate motherhood. The denial that there had been de facto family life raises doubts because of the weight given to the time factor and to the absence of genetic and legally recognised ties between the intending parents and the child born from surrogacy. Still, having found that there had been no family life, the Grand Chamber did not need to balance the right to respect for family life against the State margin of appreciation, which would have proved difficult. It is suggested that the difficulties in balancing the protection of family unity against the State margin of appreciation are due to the technological nature of contemporary surrogate motherhood. Additionally, should surrogacy become increasingly permitted, the Paradiso et Campanelli final judgment would not hinder the European Court of Human Rights from finding the existence of de facto family life and a breach of Article 8 of the European Convention on Human Rights in cases where the child born from surrogacy were separated from their intending parents.