On 31 August 2023, in the case of C. v. Italy, the European Court of Human Rights (ECtHR) delivered a judgment concerning a four-year-old child born via a gestational surrogacy arrangement in Ukraine and subsequently deemed stateless in Italy. This judgment prompts reflection on surrogacy as a potential (indirect) contributor to statelessness and on possible legal remedies to avert new incidents of statelessness.
In 2018, a heterosexual Italian couple (comprising the biological father and the intended mother) entered into a gestational surrogacy contract in Ukraine. An embryo, created using the biological father’s sperm and an anonymous donor’s egg, was transferred into a surrogate mother. Following the child’s birth in Ukraine in August 2019, Ukrainian authorities issued a birth certificate legally recognising the biological father and the intended mother as the child’s parents.
Upon their return to Italy in September 2019, the couple asked the civil registrar to register the birth details or, alternatively, to transcribe only the details of the biological father as a parent. The request was denied on the grounds that it was contrary to public policy, and the successive appeals that the couple submitted in domestic courts were unsuccessful. In September 2021, the couple appealed to the ECtHR in representation of their child, alleging a breach of Article 8 of the European Convention on Human Rights, which ensures the right to respect for private and family life.
The ECtHR’s judgment drew from its earlier case law on the legal recognition of parenthood of children born through surrogacy arrangements. It emphasised that national laws should allow the recognition of a relationship between a child born overseas via surrogacy and the biological father, as referenced in the case of Mennesson v. France. The Court also highlighted that a situation in which a child and their intended father cannot gain recognition of their relationship for an extended time disproportionately interferes with the child’s right to a private life (see the case of D.B. and Others v. Switzerland). Nevertheless, as it is also clear from the ECtHR’s Advisory Opinion in the case of Mennesson (Request no. P16-2018-001), the choice of means by which to permit recognition of the legal relationship between the child and the intended parent (where the parent does not have a biological link with the child) falls within the states’ margins of appreciation. Given the lack of European consensus on surrogacy and parental recognition, the means to achieve this recognition remains within the discretion of individual states.
In the case of C. v. Italy, the ECtHR found once again that refusing to recognise the parent-child relationship was an interference with the child’s right to respect for her private life, and proceeded to assess whether it was justified under Article 8(2) ECHR (in accordance with the law, pursuing a legitimate aim, and necessary in a democratic society). The Court observed that the interference was in line with the Italian law that prohibits surrogacy (legge n. 40/2004). Furthermore, the refusal to recognise the legal parent-child relationship of a child born abroad through surrogacy was, in Italy’s view, meant to protect the health and the rights and freedom of the child and the surrogate mother and therefore it pursed a legitimate aim. Yet, the core remained: was this interference necessary in a democratic society? In addressing this, the Court first examined the refusal to recognise the legal bond between the child and her biological father, then it separately addressed the refusal to acknowledge the relationship between the child and her intended mother.
Significant Aspects of ECtHR’s Reasoning: Child’s Legal Identity and State’s Obligations
The ECtHR emphasised that respect for private life requires the ability for everyone to establish details of their identity, including the legal parent-child relationship. The failure to recognise this relationship results in uncertainty regarding a child’s identity within society, which is detrimental in several respects. Although in C. v. Italy the ECtHR did not explicitly consider the implications of not recognising legal parentage on the child’s acquisition of nationality, these consequences cannot be overlooked. Notably, in its Advisory Opinion from 2019 in the context of the Mennesson case, the ECtHR noted that a child born abroad through surrogacy is at risk of being denied access to the nationality of the intended parents. Furthermore, in some states, this lack of recognition could hinder the child’s ability to remain in their parents’ country of residence.
In its judgment in C. v. Italy, the ECtHR observed that the child lacked Italian nationality, albeit living in Italy with her Italian biological father and Italian intended mother. Due to the unrecognised parentage, the child was considered a stateless person in Italy. According to ECtHR, the child was in a situation of legal uncertainty that arises from both the non-recognition of the parentage and the absence of Italian nationality. Although the ECtHR did not delve deeply into this, it seemed to indirectly emphasise the importance of the child having the nationality of the country in which they reside with their parents. The child’s nationality is essential to prevent uncertainty. It follows that the grant of nationality necessarily prevents new cases of statelessness.
The Court asserted that the child’s residing state must avoid the legal uncertainty and bears a positive obligation to uphold the child’s right to private life. To ensure this right, the state must equip itself with adequate and sufficient legal instruments. States must also show “exceptional diligence” when a person’s relationship with their child was at stake. Additionally, it is essential for states to implement promptly and effectively domestic procedures for establishing parentage to minimize the duration of a child’s legal uncertainty. In the case at hand, the ECtHR felt that the domestic courts failed to balance the different interests at stake and overlooked the procedural requirements of effectiveness and promptness. Indeed, the District Court did not reply to the partial transcription request of the birth certificate and the Court of Appeal dismissed this request for an overly formal reason, despite the Italian prosecutor’s office having expressed a favourable opinion for a partial transcription. As a result, four years elapsed from the initial request, and no alternative solutions were explored for establishing the legal relationship between the applicant and her biological father. Therefore, the Court concluded that the domestic courts had been unable to take a swift decision to protect the child’s best interests.
The ECtHR also pointed out that the decision-making process had to be free from excessive formalism and must be apt to further the child’s best interests irrespective of any procedural flaws. The Court also underlined that the domestic courts were required to cooperate with the parties by pointing to the legal solutions available, regardless of the specific requests of the parties. Hence, according to the ECtHR, national authorities must fulfil positive obligations: they cannot remain passive in the face of a child's legal uncertainty but must explore potential solutions within the national legal framework, even if the parties do not suggest these solutions.
In conclusion, the ECtHR determined that Italy had breached Article 8 (concerning establishing a legal parent-child relationship between the applicant and her biological father). However, regarding the establishment of the relationship between the applicant and her intended mother, there was no violation of Article 8, given that Italian law provides alternative means to establish the parental relationship (such as adoption), thus falling within Italy’s discretion.
This case underscores the practical consequences of the lack of adequate frameworks to prevent statelessness in the context of surrogacy arrangements. Establishing or recognising a legal parent-child relationship established through surrogacy or alternative reproductive technology can be challenging, especially in states with explicit or implicit bans on surrogacy, such as the majority of the Member States of the Council of Europe. The prohibition may lead authorities to reject transcriptions of birth certificates of children born via surrogacy abroad. Establishing this relationship is crucial as it influences the child’s acquisition or confirmation of nationality, particularly in countries where nationality is based primarily on the principle of jus sanguinis, like Italy. Without recognised legal parents, a child born abroad faces potential statelessness.
The case highlights that scientific advancements like surrogacy can inadvertently increase statelessness, even in Europe. Through its interpretation of Article 8, the ECtHR can prevent new cases of statelessness by centring its reasoning on the respect for a child’s identity and their best interests as part of their right to private life.
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