The First Section of the European Court of Human Rights ruled on an application filed against the Italian authorities' refusal, for reasons of public order, to register a foreign birth certificate attesting a child-parents relationship between a child born thanks to gestational surrogacy, her biological father and her intended mother.

 

The applicants, a heterosexual couple of Italian citizens, entered into a surrogacy contract in Ukraine, whereby an oocyte from an anonymous donor was fertilized with the applicant's sperm and the embryo was implanted in the uterus of a third woman. The biological filiation relationship therefore existed between the child born and the father. On the women’s side, however, the present case involves three women: the anonymous egg donor, the pregnant woman, and the intended mother.

The Court found a violation of Article 8 ECHR, which protects private and family life, only regarding the failure to recognize the relationship between the child and her father. On the one hand, the absence of recognition of the filiation relationship between the child born and the social or intending parent falls within the state's margin of appreciation, although the total absence of recognition of such a link is deemed disproportionate (in the case of surrogacy, the Italian legal system provides for the institution of adoption in particular cases).

On the other hand, the failure to recognise the filiation relationship between the child and the biological parent is excluded from the State's margin of appreciation and represent a violation of Article 8 ECHR. The child's superior best interest in establishing biological parentage with certainty must be protected through a procedure that is rapid, effective and free of excessive formalities.

 

(Comment by Tania Pagotto)