CYIL vol. 11 (2020)
CYIL 11 (2020) SURROGACY IN SELECTED CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS lapsing of three years from the decision about adoption, that the adoption is non-cancellable. If adoption is cancelled, then (pursuant to provisions of Section 841 of the Civil Code) the relation arising through the adoption, as well as the obligations and rights implying from such a relation, will cease to exist and the previous relationships will be restored. 4. Pitfalls of surrogacy – so-called surrogate tourism Gradual legalisation of surrogacy is associated also with the so-called “surrogate tourism”, which brings with it a significant risk that the state in which the ordering couple usually live may not recognise the parenthood of the ordering couple towards the children. An example may be the issues dealt with by the ECtHR in the case Paradiso and Campanelli v. Italy, Application no. 25358/12, 33 the factual basis of which was conclusion of a surrogate agreement by an Italian couple in Russia, when insemination of the surrogate mother was carried out with donor’s eggs and sperm of the man from the ordering couple. Since the surrogate mother waived all rights to the child, the ordering couple was registered in the vital statistics in Moscow as the child’s parents and a certificate of birth was issued to them. Prosecution was initiated against the child’s parents in Italy due to alleged commission of the criminal offence of falsification of official documents. At the same time, proceedings on the possibility of adoption of a minor child were initiated and the minor child was taken from the parents’ custody and for the time of 15 months was placed in a children’s home. The decision was justified especially by public order and moreover also by the fact that on the basis of the DNA test it became clear that there was no biological link between the man from the ordering couple and the child. In its decision of 24 January 2017, the ECtHR stated, among other things: “ Although the termination of their relationship with the child is not directly imputable to the applicants in the present case, it is nonetheless the consequence of the legal uncertainty that they themselves created in respect of the ties in question, by engaging in conduct that was contrary to Italian law and by coming to settle in Italy with the child.” And then the ECtHR still stated: “In contrast, the Italian courts attached little weight to the applicants’ interest in continuing to develop their relationship with a child whose parents they wished to be. They did not explicitly address the impact which the immediate and irreversible separation from the child would have on their private life. However, this has to be seen against the background of the illegality of the applicants’ conduct and the fact that their relationship with the child was precarious from the very moment that they decided to take up residence with him in Italy. The relationship became even more tenuous once it had turned out, as a result of the DNA test, that there was no biological link between the second applicant and the child.” And finally, in the conclusion of the decision it is stated as follows: “The Court does not underestimate the impact which the immediate and irreversible separation from the child must have had on the applicants’ private life. While the Convention does not recognise a right to become a parent, the Court cannot ignore the emotional hardship suffered by those whose desire to become parents has not been or cannot be fulfilled. However, the public interests at stake weigh heavily in the balance, while comparatively less weight is to be attached to the applicants’ interest in their personal development by continuing their relationship with the child. Agreeing to let the child stay with the applicants, possibly with a view to becoming his adoptive parents, would have been tantamount to legalising
33 Available from: http://eslp.justice.cz/justice/judikatura_eslp.nsf/$$WebSearch1?SearchView&Query=(%5BNaz ev%5D%3D%22paradiso%22&SearchMax=0Start=1&Count=1500&pohled=1&searchorder=4.
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