The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
Theodora Chortara, Simone Penasa, Lucia Busatta
THE BEST INTERESTS OF THE CHILD BORN VIA CROSS-BORDER SURROGACY. A COMPARISON BETWEEN
GREECE AND ITALY
ABSTRACT: Greece has recently amended its legislation on medically assisted reproduction, extending the conditions under which surrogacy can be practiced and introducing one of the most liberalised regime of surrogacy in Europe . The aim of this paper is to investigate, in a comparative perspective, the consequences of these new
provisions, taking also into account the Italian legal framework, considered one of
the most restrictive at the European level – in the perspective of the most recent developments of the Eu opea Cou t of Hu a ‘ights ase la . I pa ti ula , the pape
focuses on the problem of the guarantee of the best interests of the child born
through surrogacy and on the legal issues related to the phenomenon of crossborder surrogacy.
KEYWORDS: Surrogacy; Medically assisted reproduction; Best interests of the child;
Cross-border reproduction; Right to k o o e s o igi s.
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SUMMARY: 1. Introduction. – 1.1. General legal framework. – . . The p ote tio of the hild s est i te est:
introductive remarks. – 2. Implementation of the method in Greece. – 2.1. Conditions for the application of surrogacy in Greece. – 2.2. The declaration of the birth before the competent authorities. – . C‘O““ - BO‘DE‘
su oga a d the ECtH‘ ase la . – 3.1. The decisions in Mennesson v. France and Labassée v. France. – 3.2.
The case of Paradiso and Campanelli v. Italy. – 4. The best interest of the child born through surrogacy agreement. – 4.1. The Italian case-law: criminal and civil dimension. – 5. The right to kno o e s iologi al o igi : a
difficult balancing among individual rights. – . . The ost e e t afte ath of the ight to k o o e s o igi s
in Italy: any possibility for an analogical application? – 5.2. The Greek legal framework concerning the right to
k o o e s o igi s. – 6. Conclusive remarks.
Theodora Chortara is Attorney at Law, LLM, Research Associate of the Faculty of Law of Aristotle University of
Thessaloniki (Greece); Lucia Busatta and Simone Penasa are PhDs in Comparative and European Legal Studies,
Faculty of Law, University of Trento (Italy). The article represents the fruit of joint reflections by the three authors. Nevertheless, paragraphs 1, 2 and 3 have been written by Theodora Chortara, paragraph 4 by Simone
Penasa and paragraph 5 by Lucia Busatta. The conclusions have been written by the three authors. The article
was subject to a double blind peer review process.
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The best interests of the child born via cross-border surrogacy.
A comparison between Greece and Italy
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Lucia Busatta, Theodora Chortara, Simone Penasa
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190
1. Introduction
1.1. General legal framework
G
reece and Italy are characterised by big differences in the legislation governing the process of medically assisted reproduction (MAR). So, while Greek Law on MAR (Law no.
3089/20021 and no. 3305/20052) is one of the most liberal at a European level, in Italy,
the relative Law no. 40/20043, is described as anachronistic and incompatible with scientific developments on the issues of human reproduction, as well as with the legislation on MAR applied in
other European countries4.
In this context, since 2002, the process of surrogacy is permitted under Greek law, as provided by Article 1458 of the Civil Code that regulates the specific conditions for its implementation (which will be
presented infra). Recently though, the Greek legislation regarding surrogacy has become even more
permissive: while, under the previous regime, the process was legal only if both the assisted woman
and the surrogate mother were permanent residents in Greece, now, according to Article 17 of Greek
Law no. 4272/2014, the assisted woman or the surrogate mother should have her permanent or
temporary residence in Greece5. Therefore, after this legislative change of crucial importance, permanent residents of other states can also legally have access to the process of surrogacy in Greece6.
It ould e easil i agi ed that G ee e is t i g to e o e a a didate desti atio , he e ouples
(or even single women) from abroad can have access to a method which is prohibited in their State.
It should be reminded that, in Italy, surrogacy agreements are prohibited by Italian Law no. 40/2004,
that provides severe legal consequences in case the prohibition is violated7. In particular, according
to Article 12 par. 6 of Law no. 40/2004, the implementation of surrogacy is criminally punishable with
imprisonment from three months to two years and a fine from 600,000 euro up to 1,000,000 euro.
Moreover, the Law no. 40/2004 does not exempt neither the assisted persons nor the surrogate
mother from the above mentioned penalties, as it does, on the contrary, for other breaches of its
previsions.
1
Government Gazette no. 327 / 23.12.2002.
Government Gazette no. 17 / 27.1.2005.
3
Official Gazzette no. 45 / 24.2.2004.
4
See P. HANAFIN, Law, Biopolitics and Reproductive Citizenship. The Case of Assisted Reproduction in Italy, in
Tecnoscienza, 1, 2013, 45; S. BIONDI, Access to Medical-Assisted Reproduction and OGD in Italian Law: A Deadly
Blow to an Illiberal Statute? Commentary to the European Court on Human Rights’s decision Costa and Pavan v
Italy (ECtHR, 28 August 2012, App. 54270/2010), in Medical Law Review, 21(3), 2013, 474-486; G. REPETTO,
«Non di sola Cedu...» La fecondazione assistita e il diritto alla salute in Italia e in Europa, in Diritto Pubblico, 1,
2013, 131-166; L. BUSATTA, S. PENASA, The Italian perspective on cross-border assisted reproduction: the law no.
40/04 in action, in M. KAIAFA-GBANTI, E. KOUNOUGERI-MANOLEDAKI, E. SYMEONIDOU-KASTANIDOU (eds.), Assisted
Reproduction in Europe: Social, Ethical and Legal Issues, Athens-Thessaloniki, 2015, 435-453.
5
In the preliminary report of Law no. 4272/2014 it is noted that in this way «the possibility of access is
extended to women – donors or future surrogates that have their permanent residence abroad».
6
For some thoughts regarding the reasons of this legislative change see. M. MILAPIDOU, N. 4272/2014 and the
amendments made to the Law 3305/2005 on Medically Assisted Reproduction, in PoinDik, 2014, 978 ff.
7
According to Article 12 par. 6 of Law no. 40/2004, the implementation of surrogacy is criminally punishable
with imprisonment from three months to two years and a fine of 600,000 euros to 1,000,000 euros.
2
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BioLaw Journal – Rivista di BioDiritto, n. 1/2016
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
The Greek legislation on assisted reproduction and, more specifically, Article 1 par. 2 of Law no.
3305/2005, expressly provides that «during the application of these methods the interests of the
child to be born should be particularly taken into account». In the preliminary report of the same
law, it is specified that the assessment of the child's interests is an expression of the fundamental
principle of the protection of children's rights, safeguarded by Article 3 of the International Convention on the Rights of the Child and by Article II 24 of the Charter of Fundamental EU rights and, also,
that this principle runs through the whole law of minors in the Greek legal system8.
On the other hand, in Italy, the legislator did not include in the text of Law no. 40/2004 explicit reference to the interests of the child to be born, as a restriction to be respected when the methods of
MAR are being applied. However, in Article 1 par. 1 of Law no. 40/2004, it is stated, as a general principle, that the provisions of the Law assure the interests of all parties involved in the process of MAR,
including the unborn («concepito»)9. Of course, it should be noted that some of the provisions of the
Italian Law, aiming to protect the unborn can, in the same time, affect the interests of the child to be
born. A typical example is the ban of pre-implantation diagnosis imposed on fertile couples – carriers
of hereditary diseases, that was provided by the Italian Law, and was very recently lifted by the Constitutional Court10: in this decision, the Court stated that the Law, attempting to p ote t the i tegit of the e
o f o the i asi e p a ti e of p ei pla tatio diag osis a d to a oid the p a ti e
of embryo selection seemed to undermine the interests of the future child who, because of this restrictive and contradictory legislative choice, was likely to be born with serious anomalies or pathologies.
However, issues regarding the protection of the interests of the child can arise not only before the
application of the methods or during the period of gestation, namely when the child is not yet born,
a d so his i te ests e ai uite u lea , ut also afte the i th of a hild via MAR methods
8
Available at http://repro.law.auth.gr/ (last accessed 27.02.2016).
See also the report presented to the legislative body of the Camera dei Deputati on 30.5.2001 by Giancarlo
Giorgetti, one of the main initiators of the Law, according to which the law proposal was based on the following
three principles: a) that the human embryo is a human subject from the moment of fertilization, b) protection
of the family institution, as an essential unit of society, vital to the continuity of the human species and c)
protection of the right of the infant to have a father and a mother to bring him up, to love him, to care for his
education
and
to
ensure
him
the
necessary
support
until
adulthood.
See
http://storia.camera.it/documenti/progetti-legge/20010530-47-giancarlo-giorgetti-norme-materia (last accessed 27.02.2016).
10
Decision no. 96/2015, Gazzetta Ufficiale, Serie Speciale no. 23/10.6.2015. An English translation of the
decision
is
available
on
the
website
of
the
Italian
Constitutional
Court:
http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S96_2015_en.pdf (last accessed 27.02.2016). It must be noted that, even before the cited decision, ordinary judges came to interpret
the Law, as to allowing the access to pre-implantation diagnosis also in favour of fertile couples carrying a geth
netically transmissible diseases (see, among others, decisions of Tribunal of Cagliari, 9 November 2012; Triburd
nal od Rome, decision of 23 September 2013); see also the decision Costa and Pavan v. Italy (European Court
th
of Human Rights, appl. no. 54270/10, 28 August 2012). For a comprehensive analysis of the case-law in this
area, see B. LIBERALI, La diagnosi genetica preimpianto fra interpretazioni costituzionalmente conformi,
disapplicazione della legge n. 40 del 2004, diretta esecuzione delle decisioni della Corte europea dei diritti
dell’uo o e uestio i di legitti ità ostituzio ale, in Rivista AIC, 2, 2014.
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. . The prote tio of the hild’s est i terest: i trodu ti e re arks
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Lucia Busatta, Theodora Chortara, Simone Penasa
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192
and, for the purposes of the present analysis, via a surrogacy agreement, moment in which the legal
recognition of personhood and the ownership of rights to be respected arise11. A typical example is
the case of the so- alled ep odu ti e tou is 12, othe ise, the oss- o de ep odu ti e a e ,
as it should more correctly referred to13, phenomenon which is highly expected to involve an increasing number of Italian citizens legally seeking a surrogacy treatment in Greece, because of the recent
legal amendments in the latter State (see supra, 1.1.). As made evident by many recent judgments issued by Italian Courts14 and by the European Court of Human Rights15, such cases often present legal
complications that arise when the couple applies for the registration of the newborn before the
competent Italian authorities. Clearly, such situations and the way they are resolved by judges are directly reflecting their effects on the interests of children born through surrogacy.
The aim of this paper is to try to offer a concrete answer to this issue, taking in due consideration the
ECtHR case law in similar situation and, in particular, the landmark decision in Paradiso and Campanelli v. Italy16. In the context of surrogacy, the interests of the child should be used as the dominant
criterion to be taken into account in solving the above-mentioned problems, as it clearly emerges
from the relevant decisions of the Strasbourg Court but, also, from some recent national judgments
on the matter.
Consequently, a special paragraph will be dedicated to answer the question whether the interests of
a child born via a su oga ag ee e t a d ga etes do atio i G ee e which is also legal accordi g to the G eek La should e pu sued also
a k o ledgi g the hild s ight to k o he o igi s,
and, in particular, the identity of the person that donated the genetic material17. Is it for the best interests of the child to provide her with a right to such information? And, in case of a positive respo se, ould t that e a la k of p ote tio of the ights of the do o of the ge eti ate ial? Ho
to e o ile the ight to a o
it of the do o ith the ight to k o o e s genetic origins?
In order to achieve a more complete study of the subject and to answer the above mentioned questio s, a ief o ito i g of the path to e follo ed
a Italia o othe fo eig
ouple, ho
wishes to resort to surrogacy in Greece, from the beginning until the completion of the process (after
the birth of the child and their return to their country of origin), will be attempted.
11
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Under the provisions of both the Greek (art. 35 of Civil Code) and the Italian Law (art. 1 of Civil Code) legal
personhood is acquired at the moment of the birth.
12
For the definition of the term, see. A. GRAMMATICAKI-ALEXIOU, Fertility Tourism, European Law and Conflict of
Laws Issues, Volume in Honor of Professor Ioannis Voulgaris, Athens - Thessaloniki, 2011, 93.
13
See e.g. G. PENNINGS ET AL., ESHRE Task Force on Ethics and Law 14: Equity of access to assisted reproductive
technology, in Human Reproduction, 23, 2008, 772-774.
14
See paragraph 4.
15
Although, for the moment, there is no legal case concerning Italian citizens that underwent a surrogacy
treatment in Greece.
16
th
Paradiso and Campanelli v. Italy, appl. no. 25358/12, decided on 27 January 2015 and available at
http://hudoc.echr.coe.int/eng?i=001-150770 (last accessed 27.02.2016).
17
It is noted that under art. 1460 of the Greek Civil Code, the identity of the persons who have donated their
genetic material or their fertilized eggs is not revealed to the couple. Nevertheless, the child can have access to
the clinical record with medical information on the donor, but only for reasons related with her own health.
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
2.1. Conditions for the application of surrogacy in Greece
The conditions for access to surrogacy in Greece are mainly provided by Article 1458 of the Greek
Civil Code, according to which the assisted woman should file an application to the competent Court,
before the transfer of the fertilised oocytes into the uterus of the surrogate mother, requesting the
granting of judicial authorisation for the transfer. For the grant of judicial authorisation, the assisted
woman must prove, by presenting the corresponding medical certificate, that she is medically unable
to conceive but, also, that the candidate surrogate mother is able to conceive, as to her state of
health18. Furthermore, under Article 4 par. 2 and 13 of Greek Law no. 3305/2005, the future surrogate should also pass a thorough psychological evaluation. Moreover, the assisted woman should not
have exceeded 50 years of age, while, on the contrary, for the surrogate mother, there is no equivalent law provision providing for an age limit, as her ability to conceive and to bear a pregnancy is
demonstrated by medical certificate.
As regards the genetic material to be used, given the fact that heterologous fertilisation is permitted
in Greece, the genetic material (male, female or both ) can legally come from a third donor. However, it should be underlined that, under Greek law, o l pa tial su stitutio is possi le, i.e. it is
forbidden that the ova derive from the surrogate mother herself19.
If all the above-mentioned conditions are met, the assisted woman must provide the Court with a
written and free of exchange agreement20 between her and her husband and the future surrogate
and her husband, from which the consent of all of the above persons applying the method and the
altruistic nature of the agreement should be proved.
The Court, in order to authorise the transfer of the fertilised eggs and the gestation by the surrogate
mother, must normally just verify if the above-mentioned conditions imposed by law for the legality
of the process are satisfied. Since the entry into force of the Greek law, however, there has been a
relati el s all u e of judi ial de isio s hi h go o e step fu the , a d see to gi e atte tio
not only to the legality, but also to the feasibility of the implementation of surrogacy in each single
case. For instance, there have been decisions that, whilst allowing the implementation of the
ethod, i luded i the easo i g e aluatio s o the ouple s fi a ial situatio , o thei a ilit to
aise the hild i a lo i g e i o e t ith affe tio o e e o the ouple s positi e p ese e i
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18
In the prevailing view, in the concept of inability to conceive is included the case where there is a risk of
disease transmission to the child. See. K. PANAGOS, Surrogacy: Greek legal system and forensic implications,
Athens - Thessaloniki, 2011, 47.
19
See E. KOUNOUGERI – MANOLEDAKI, Family Law, Athens – Thessaloniki, 2003, 34, who states that the underlying
easo of this p ohi itio is that it is so iall u a epta le to dep i e a o a
ho is iologi all a d
genetically mother of a child (i.e. the surrogate mother) of the right to be also the legal mother of the child.
20
However, according to Article 13 par. 4 of Law no.
/
, «It does t o sist e ha ge: a. The pa e t
of the expenditure required to achieve pregnancy, gestation, childbirth and maternity; b. Any actual damage of
gestation because abstinence from work, as well as fees for dependent work, which was denied due to the
absence, to achieve pregnancy, gestation, childbirth and postpartum. The amount of covered expenses and
allowances is determined by a decision of the Authority».
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2. Implementation of the method in Greece
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Lucia Busatta, Theodora Chortara, Simone Penasa
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194
the o
u it 21. Such decisions, in which the child's interests (even if this term is not explicitly
mentioned) have in fact been used as a separate additional condition for the admissibility of surrogacy, have been strongly, and not unfairly, criticised by legal scholars22. In particular, it has been argued that these evaluations may lead to future decisions prohibiting the application of the method
because i.e. the couple will not be able to ensure a suitable environment for the child, imposing in
that way restrictions on the private and the marital autonomy of the candidate assisted persons that
are not described and required by Greek law. It should also be noted that at the moment in which
each separate case is pending for authorisation before the Court, according to the Greek law, the
pote tial pe so
hose i te ests a e at stake a el the e
o has ot et ee
eated23.
Therefore, it is at least irrational (if not even dangerous) broadening the jurisdictional interpretation
of the Law and applying additional conditions for the authorisation of the method, with the aim to
protect a future person and, in the meantime, restricting the rights of persons who are already alive
(the assisted couple). In any case, the rule followed by most decisions remains and should, for the
reasons explained above, remain that, if the Court confirms that the conditions set by law for the implementation of the method are met, permission for the transfer of the fertilised ova is granted,
without examining issues related to the child's interests.
The transfer will normally take place in a Greek MAR centre (even though such condition is not mandatory by law); during the pregnancy, the surrogate mother will undergo the necessary medical tests
and follow up as any other pregnant woman.
2.2. The declaration of the birth before the competent authorities
After the birth of the child24, the next step is the declaration of the birth before the competent authority, in this case before the Greek registry office of the municipality where the child was born. At
this point, the Greek Law no. 344/197625 will be applied; its Article 20 provides that every birth must
be declared within ten days before the registry office in the place where it took place, by a doctor or
midwife certificate or, in case of failure to issue the relevant certificate, by a statement of the person
21
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
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These are Monomeles Protodikeio Thessalonikis 29288/2010, 14946/2010 Monomeles Protodikeio
Thessalonikis, Monomeles Protodikeio Thessalonikis 838/2010, Monomeles Protodikeio Thessalonikis
16574/2009, Monomeles Protodikeio Thessalonikis 395/2009 (all on Legal Data Bank ISOCRATIS), Monomeles
Protodikeio Rodopis 400/2007, Armenopoulos 2008, 1046 et seq., Monomeles Protodikeio Katerinis 408/2006
Armenopoulos 2007, 863 et seq.
22
T. TROKANAS, The application of methods of medically assisted reproduction and the interests of the child to be
st
born, in Family law in the 21 century, Athens – Thessaloniki, 2012, 127.
23
Note that, according to the most prevalent view in Greek law, the legal protection of the embryo as such
does t egi at the o e t of o eptio , ut afte the i pla tatio of the fertilised egg in the uterus. See,
inter alia, E. SIMEONIDOU - KASTANIDOU, Abortion as a matter of criminal law, Athens – Thessaloniki, 1984, 1808 . Befo e this o e t a d u til the th da afte fe tilisatio , the e is o l a fe tilised egg a d not an
e
o to p ote t. “ee also the E pla ato ‘epo t of La no. 3089/2002, at KNoV, 50.2625.
24
It is worth stressing that, in compliance with the legal framework we are dealing with, for the surrogacy
agreement to be effective, it is necessary that the birth takes place in Greece. Otherwise – if for example the
child was delivered in Italy – the relevant legislative (Italian) framework would be applied: therefore, in
compliance with the principle mater semper certa, the surrogate would be registered as the legal mother of the
child.
25
Government Gazette no. 163/1976.
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
. CRO““ - BORDER surroga y a d the ECtHR’ ase la
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3.1. The decisions in Mennesson v. France and Labassée v. France
Τhe t o, elati el e e t, de isio s of the ECtH‘ i the ases of Mennesson v. France and Labassée
v. France, which directly invoked the criterion of the best interests of the child and highlighted its
primary importance in comparison with the interests of the other parties involved in the context of
surrogacy, will be briefly presented here.
26
See Section 54 of HFE Act.
Because the birth of the child took place while there couple was married, according to the Greek Law, the
man of the couple will be the legal father of the child (Article 1465 of the Greek Civil Code).
27
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Essays
who has the legal obligation to declare the birth. Then, in the following paragraph of the same article, a special provision is dedicated to births via surrogacy and requires that the decision of the Court
that authorised the implementation of the method should also be brought to the registry office. After receiving these documents, the responsible registrar will issue the relevant birth certificate, in
which the assisted couple will be referred as the legal parents of the child and no reference will be
made to the surrogate mother.
I othe o ds, i G eek La the e is o eed fo the assisted pe so s to appl fo a pa e tal o de
after the birth of the child in order to establish the parental relationship, as it happens, on the contrary in other legal systems (i.e. in the United Kingdom26); the judicial authorisation released before
the transfer of the fertilised ova is playing this role. This is provided by Article 1464 of the Greek Civil
Code, which stipulates that, in case of surrogate motherhood, the woman which was given permission by the Court is presumed to be the legal mother of the child. Therefore, from the moment of the
birth, the child will be considered a legitimate child of the applicant woman and her husband27. Then,
in order to return to their country with their child, the couple should address to the competent consula autho it i G ee e, he e the ill ha e to ha d i thei hild s i th e tifi ate a d e uest
the issuance of the essential travel documents for the newborn.
If at this poi t the e is fo al i fo atio of the o pete t autho ities of the ouple s state that the
child born through surrogacy (though legally practiced in Greece), and so, that the woman who gave
birth to the child is not the one named on the birth certificate, legal complications for the couple,
and, of course, for the child, may begin. Despite the fact that, as mentioned before, there is so far no
ad hoc published decision for surrogacy performed by an Italian or, generally, a foreign couple in
Greece, the Italian case law has in other similar cases adopted contradictory solutions, that sometimes omitted to take into account the best interests of the child, which are presented infra (chapt.
4). Before the presentation of the relevant Italian decisions, however, it is appropriate to make a
brief reference to the importance that the recent case law of the European Court of Human Rights
(ECtHR) has attributed to the protection of the best interests of the child born after a surrogacy
agreements between citizens of states where the method is prohibited and surrogate mothers, in
states where the same method is legal.
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Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
196
28
For the background and the text of the decisions see Mennesson v. France, appl. no. 65192/11, decided on
th
26 June 2014), available at http://hudoc.echr.coe.int/eng?i=001-145179, Labassée v. France, appl. no.
th
65941/11, decided on 26 June 2014, available at http://hudoc.echr.coe.int/eng?i=001-145180 (last accessed
27.02.2016).
29
See Article 3.1. of Convention on the Rights of the child, according to which «In all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration».
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The history of these cases is quite similar28; it involves an application lodged by the interested couples (Mennesson and Labassée respectively) against France, whose authorities had refused to register the birth certificates of their children born through surrogacy legally performed abroad (in California and in Minnesota, USA). In both cases the applicant couples, after many years of litigation, had
to face the dismissal of their claims by the French Court of Cassation, on the grounds that surrogacy
agreements are forbidden by domestic (French) law, and, more specifically, by Article 16-7 of the
French Civil Code, that poses a public policy restriction, according to which «any agreement relating
to procreation or gestation on behalf of another is void».
The applicants argued that the measures adopted by the French Government violated Articles 8 and
14 of the European Convention on Human Rights. The ECtHR, in both cases, found that there had
ee a iolatio of A ti le 8 of the Co e tio , ega di g the hild s ight to espe t fo he p i ate
life and rejected the other claims of the applicants.
More extensively, in Mennesson (which will be cited here, as more representative), the ECtHR noted
that there is a lack of consensus among European States on the permissibility of surrogacy and on the
legal recognition of the relationship between the assisted person(s) and the child born through this
method abroad (§ 78) and confirmed that Member States should be accorded a wide margin of appreciation to decide on these matters (§ 79).
On the other hand, the ECtHR stated that in cases regarding the legal relationship between a parent
and a child, a fundamental aspect of the identity of a person is at stake; consequently, the abovementioned margin granted to the State should be reduced (§ 80).
Additionally, the Court noted that, while verifying the achievement of a fair balancing between the
conflicting interests of the State and those affected by the solution adopted by the State, the Court
must take into account the fundamental principle according to which, whenever children are involved, their best interests must prevail: «chaque fois que la situatio d u e fa t est e ause,
l i t t sup ieu de elui-ci doit primer» (§ 81)29.
Then, after rejecting – for reasons not related to the problematic of this study – the complaint of the
applicants for breach of their right to family life, the Court examined whether there had been a violatio of the hild e s ight to espe t fo thei p i ate life. A o di g to the ECtH‘, this ight i ludes
the a ilit of a i di idual to esta lish the details of his ide tit as a hu a ei g, hi h also includes the legal parent-child relationship. And the fact that France, whilst recognising that these children can legally relate with their parents abroad, refuses to register them as legitimate children on
its territory, affects the identity of these children within the French society (§ 96). Moreover, it was
accepted that the legal uncertainty regarding the recognition of French citizenship to these children
and the implications on their heritage rights, have also negative effects on the personal identity of
the last ones (§ 97 and § 98). The ECtHR noted that the non-recognition of the legal relationship be-
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
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G. PUPPINCK, CL. DE LA HOUGUE, Cou eu op e e des d oits de l’ho
e: e s la li alisatio de la GPA, in Revue Lamy Droit Civil, 118, 1.9.2014, 78-84.
31
See M. DOUCET, La France contrainte de faire primer l’i t t sup ieu de l’e fa t issu d’u e GPA, in
http://www.revuegeneraledudroit.eu/blog/2014/09/15/la-france-contrainte-de-faire-primer-linteretsuperieur-de-lenfant-issu-dune-gpa/#.VGsOGoe6rfY (last accessed 27.02.2016).
32
See J. HAUSER, État i il, ap s l’e fa t o e tio el, u aut e ou eau , l’e fa t fait a ompli!; Note sous
Cour eu op e e des d oits de l’ho
e,
jui
, a t u
o
9 / , affai e Me esso o t e
F a e et Cou eu op e e des d oits de l’ho
e,
jui
, a t u
o 9 / , affai e La ass e
contre France, in Revue Trimestrielle de Droit Civil, 3, 1.7.2014, 616-619, who supports, among other things,
30
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
tween parents and children does not only affect the parents, but also the children themselves, whose
right to respect for their private life, meaning that everyone should be able to establish the essence
of her identity, including the legal relationship between parent and child, is attacked at its base. This
situation, according to the Court, raises serious concerns as to its compatibility with the child's best
interests. For this specific case, it was stressed that one of the two members of the couple (the man)
had a biologic link with the children, which is a component of their identity and thus to deprive them
of their legal relationship with their father would be contrary to their interests. Thus, taking into account the consequences of this serious limitation to the identity and the private life of the children,
the Court ruled that France had exceeded the permissible limits of its margin of appreciation. Finally,
the ECtHR further stressed that its reasoning takes into account the importance that must be given
to the child's interests when balancing the conflicting interests and concluded, given all of the abovee tio ed fa ts, that a iolatio of the hild e s ight to respect for their private life had taken
place.
Therefore, the ECtHR, by characterising the choice of the French law-maker to prohibit surrogacy as
understandable, seems to implicitly accept this prohibition30. Besides, the issue the ECtHR dealt with
was not the legitimacy of the French law itself, but the judgment of whether its consequences were
restricting the rights of the applicants (parents and children) in a manner that a violation of the Convention could be ascertained. In this direction, the Court used the criterion of the best interests of
the child as the basic rule in order to resolve the pending case. Moreover, the ECtHR had already
confirmed, through previous judgments, the primacy of the child's interests when they conflict with
the public interest, the public order or the interests of an adult31. Thus, in the present case, the
child's interests, in the sense of protecting the right to private life and, in particular in the building of
personal identity, made the restrictions on establishing legal bonds between children born by the
method of surrogate motherhood outside France and the interested couple intolerable under the
conventional framework.
Furthermore, before condemning France for violation of Article 8 of the Convention, the Court underlined that the existence of a biological link between the children and the intended father clashed
with the deprivation of the children of their legal relationship with the man whose genetic material
had been used for the implementation of the process. However, the Court did not specify if its decision would have been different if there was no biological link with any of the two members of the
couple, namely whether the biological link between the children with father was a sine qua non condition for the legal recognition of kinship in these cases32. This issue was, at least, partly addressed in
Paradiso and Campanelli v. Italy, decided just a few months after Mennesson and Labassee.
197
Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
198
3.2. The case of Paradiso and Campanelli v. Italy33
The specificity of the facts that occupied the ECtHR in the case Paradiso and Campanelli v. Italy lies in
the fa t that the Italia autho ities e o ed f o the lai a ts ustod the hild o afte a su ogacy process conducted in Russia. According to the decision, a married couple, Donatina Paradiso
and Giovanni Campanelli, after unsuccessful attempts to procreate by IVF in their country, addressed
to Russia, where they had a child through surrogacy process with egg donation from a third donor in
a clinic in Moscow. As pro ided
‘ussia la , the appli a ts' a es e e e o ded i the hild s
birth certificate. The birth certificate did not include any mention to the process of surrogacy which
had been implemented. The mother of the child went to the Italian consulate in Moscow, where she
handed the relevant child's birth documentation and obtained the necessary documents of the child,
so that he could travel to Italy. A few days after their return to Italy, the Italian consulate in Moscow
informed the Italian authorities that the hild s i th file o tai ed false i fo atio . Thus, a i i al
proceeding was opened against the couple for «alteration of civil status», false declaration before a
public authority and violation of the law on adoption. At the same time, the child was declared in a
state of a a do e t a o di g to the p edi tio s of the Italia la o adoptio a d a p o edu e
for placing the child under guardianship was opened. The Italian authorities refused to register the
hild s i th e tifi ate i Italian records. After DNA tests ordered by the judicial authorities, it was
revealed that neither Giovanni Campanelli nor Mrs. Paradiso were genetically linked with the child
and, based on this assumption, the Juvenile Court ordered the removal of the child fro the ouple s
custody and, some time later, the child was assigned to another family.
The couple appealed ultimately before the ECtHR, protesting that the refusal of the Italian authorities to register their child's birth certificate in Italian records and the removal of the minor constituted a violation of Article 8 of the Convention. They also noted that the interest of the child to remain with them should have been the only criterion used by the Italian authorities in order to decide
on their case (§ 65).
The ECtHR dismissed the first complaint of the applicants on the non-registration of the birth certificate of the child. However, on the removal of the minor from the applicants, the ECtHR recognised
the e iste e of a de facto fa il life et ee the couple and the child, fact that resulted in the
applicability of Article 8 of the Convention. Then, while judging whether there had been a violation of
Article 8, the Court reiterated its established position that, in the judgment of whether a fair balance
between the public interest and the private interests at stake was observed, the best interest of the
child should always be regarded as superior and be protected as such (§ 75). Indeed, according to the
ECtHR, this obligation lies on the Member State, regardless of the nature of the parental link, genetic
or other (§ 80).
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that if the ke a e the hild's i te ests, it should also e a epted fo the sa e easo , a el to p ote t the
interests and the private life of the child, the recognition of kinship for a same-sex couple that procreates
through MAR methods.
33
th
Paradiso and Campanelli v. Italy, appl no. 25358/12, decided on 27 January 2015, available at
http://hudoc.echr.coe.int/eng?i=001-151056 (last accessed 27.02.2016). See also L. LENTI, Paradiso e
Campanelli c. Italia: interesse del minore, idoneità a educare e violazioni di legge, in Quaderni costituzionali, 2,
2015, 472, who correctly notes that the real object of the ECtHR decision is adoption and not surrogacy.
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
4. The best interest of the child born through surrogacy agreement
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4.1. The Italian case-law: criminal and civil dimension
Within the Italian case-law, the use ade
Italia judges of the ope -te tu ed p i iple of the
best interest of the child has been plural and not free from uncertainty and inconsistency. It was just
recently that Italian judges started to privilege interpretations fully consistent with the best interests
of the child, as interpreted by the ECtHR case-law.
If we analyse the recent case-law of criminal (and civil) courts in the light of the best interests of the
child, two issues seem to be particularly relevant and challenging: on the one hand, the determination of legal parenthood; on the other hand, the right to know genetic origins (see the following
paragraph).
With regard to the first issue, it is worth noting a different approach between the Court of Cassation
(Civil section), on the one hand, and a recent trend within Italian criminal Tribunals (Varese, decision
of 8th October 2014; Pisa, decision of 10th April, 2015), on the other one.
While the Court of Cassation denied the recognition of parenthood, due to both the absence of any
biologic link with the new-born child and the violation of public policy (see below), the Tribunal of
Varese, on the grounds of the above-mentioned ECtHR case-law (Mennesson v France), has chosen a
very different approach34. The Court in Varese, diverging f o the Cou t of Cassatio s i te p etatio
of the s ope a d ea i g of the p i iple of the hild s est i te est, dis ha ged the ouple, that
consciously declared a biological link between the woman and newborn children (surrogacy agreement in Ukraine), and stated that the right of the children to have a certain and stable parenthood
relationship must prevail on the traditional rules provided by the Italian legal system in the context of
the definition of legal parenthood. Interestingly enough, on the one hand, the Corte di cassazione
does not directly enforce the ECtHR case-law, giving its own interpretation of the concrete case; on
34
The case is available at http://www.biodiritto.org/index.php/item/579-surrogata_varese14 (last accessed
27.02.2016).
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
With spe ifi ega d to the e o al of the hild f o the ouple s ustod , it as poi ted out that
this was an extreme measure, which should have been the last resort and, as such, could have been
justified only if it aimed to protect the child from an immediate danger (§ 80). Finally, the ECtHR decided that it was not convinced about the appropriate nature of the measures that the Italian authorities had used, taking in particular into account the fact that «a child should not be put at a disadvantage because of the fact that it came into the world by surrogate mother» as to the crucial issues related to citizenship or identity (§ 85) and judged that the Italian authorities had failed to adopt
a fair balance of interests of the parties, in violation of Article 8 of the Convention. Nevertheless, the
Court noted that this violation did not require the Italian authorities to return the child to the applicants, since this had undoubtedly developed emotional bonds with the family to which it was assigned and with which lived since 2013.
199
Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
200
the other hand, the Tribunal of Varese directly applies the ECtHR case-law, in order to bypass the Italian legislation in the context of legal parenthood35.
The analysis of the two reasoning clearly shows a different approach to both the interpretation of the
best interest of the child and the role of ECtHR case-law, although the different nature of the jurisdictions involved must be underlined: civil – Corte di cassazione - and criminal – Tribunal of Varese and
Pisa –. Therefore, on the one hand, the Cassazione was called to recognise the legal parenthood of
the Italian couple; on the other hand, Tribunals of Varese and Pisa decided on the criminal responsibility of Italian couples for alterazione di stato36 of the child born on the ground of a surrogacy
agreement signed and implemented abroad.
The Corte di cassazione (Civil section, n. 24001/2014), after having preliminary declared the surrogacy agreement void according to the relevant national law (Ukraine) as both gametes were donated,
states that the parenthood declaration made by the Italian couple was invalid too. The declaration is
contrary to public policy, intended as shared fundamental national values, within which it must be intended also the prohibition of any surrogacy agreement, to guarantee both the principle of human
dignity of the pregnant woman and the legal institution of adoption. Interestingly, the Court clearly
states that the decision not to recognise any legal relationship between the couple and the child
does ot iolate the hild s est i te est: a o di g to the Cou t, «the legislatu e o side ed, ot unreasonably, that the interest of the child is guaranteed by attributing motherhood to the woman giving birth to the child. Furthermore, adoption is the means selected by the legislature, instead of the
mere agreement between private parties, to realise parenthood separated with any biological link».
The Cassazione goes to dismiss also the reference to the ECtHR case-law, differently from the approach of the Tribunal of Varese. According to the Court, the ECtHR – in the case Mennesson v.
France – e og ised, o the o e ha d, the “tate s oad a gi of app e iation; and, on the other
hand, the concrete case was different, as one of the men was the biological father of the child born
via surrogacy agreement37.
Related to the identification of the ECHR as a source of law within the Italian legal order, see – among others
– Italian Constitutional Court, decisions nn. 348-349/2007, 80/2011, 313/2013, 49/2015. Recently, A. PIN, A
Ju isp ude e to Ha dle ith Ca e: The Eu opea Cou t of Hu a Rights’ U settled Case Law, its Authority, and
st
its Future, According to the Italian Constitutional Court, in I t’l J. Co st. L. Blog, 1 May 2015, available at
http://www.iconnectblog.com/2015/04/mini-symposium-on-cc-judgment-49-2015 (last accessed 27.02.2016);
D. TEGA, A Natio al Na ati e: The Co stitutio ’s Axiologi al P e ale e o the ECHR–A Comment on the Italian
st
Constitutional Court Judgment No. 49/2015, in I t’l J. Co st. L. Blog, 1 May 2015, available at
http://www.iconnectblog.com/2015/04/mini-symposium-on-cc-judgment-49-2015 (last accessed 27.02.2016);
G.
MARTINICO,
Corti
costituzionali
o
sup e e
e
diso edie za
fu zio ale ,
in
http://www.penalecontemporaneo.it/upload/1430150015MARTINICO_2015.pdf; A. RUGGERI, Spunti di
riflessione in tema di applicazione diretta della CEDU e di efficacia delle decisioni della Corte di Strasburgo (a
a gi e di u a p o u zia del T i . di Ro a, I “ez. Ci ., he dà seguito a Co te EDU Costa e Pa a in Consulta
Online, 2013, http://www.giurcost.org/studi/ruggeri27.pdf. (last accessed 27.02.2016).
36
According to article 567 of the Italian Criminal Code, «anyone who through the replacement of a newborn,
alters her/his civil status shall be punished with imprisonment from three to ten years. The punishment of
imprisonment from five to fifteen years shall be applied to anyone who, in the process of formation of a birth
certificate, alters the newborn's civil status through false certifications, false declarations o other untruth».
37
With regard to the relationship between Cassazione and ECtHR case-law, see M. RIZZUTI, La maternità
surrogata: tra gestazione altruistica e compravendita internazionale di minori, in BioLaw Journal – Rivista di
35
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The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
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BioDiritto, 2, 2015, 89 ff.; A. VESTO, La maternità surrogata: Cassazione e CEDU a confronto, in Famiglia e diritto,
3, 2015, 306-312.
38
See T. TRINCHERA, Mate ità su ogata all’este o e espo sa ilità pe ale: il di attito p osegue o u a
sentenza del Tribunale di Varese che si adegua ai principi espressi dalla Corte EDU e assolve gli imputati, in
www.penalecontemporaneo.it, 2014 (last accessed 27.02.2016).
39
The more critical is the legal determination of motherhood: on this regard, B. SALONE, Figli su commissione:
profili civilistici della maternità surrogata in Italia dopo la legge 40/2004, in BioLaw Journal – Rivista di Biodiritto, 2, 2014, 178 ff.
40
C. CAMPIGLIO, Il di itto all'ide tità pe so ale del figlio ato all’este o da adre surrogata (ovvero, la lenta
agonia del limite dell'ordine pubblico, in La Nuova Giurisprudenza Civile Commentata, 12, 2014, 1132-1139; S.
TONOLO, La trascrizione degli atti di nascita derivanti da maternità surrogata: ordine pubblico e interesse del
minore, in Rivista di diritto internazionale privato e processuale, 1, 2014, 81-104; G. CASABURI, Sangue e suolo: la
Cassazione e il divieto di maternità surrogata (Nota a Cass. 11 novembre 2014, n.24001)-Parte I, in Il Foro
italiano, 12, 2014, 3414-3416.
41
On this regard, see M. LO GIUDICE, Maternità surrogata: alcune declinazioni penalistiche della trascrivibilità
dell’atto di as ita fo ato all’este o; la o o figu a ilità del delitto di alte azio e di stato a t.
, o
a
2 c.p.) per conformità alla "lex loci"; il difficile ruolo del diritto penale in campo biogiuridico: tra esigenze
p e e ti e, de i e pe alisti he e di itti dell’uo o, in Il Diritto di famiglia e delle persone, 4, 2014, 1488-1494.
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
On the contrary, the Tribunal of Varese does not recognise any criminal responsibility for an Italian
couple, in the light of guaranteeing the certainty of the legal status of the children born via surrogacy. Their interest, especially when one of the members of the couple is the biological parent, must
prevail on the competing public interest to detect false declarations on legal parenthood. Guaranteeing them a stable legal status, which is at the same time coherent with the social situation between
the a d the ouple, pe fo s the hild e s est i te est. The goal to pu sue the hild e s est interest allows judges to overcome the possible violation of the duty not to declare a false parenthood
status, in line with the recent ECtHR case-law stating that the way of conception is not relevant for
the recognition of parenthood. The plain denial of parenthood, due to the presence of a surrogacy
agreement, will consist in an intolerable violation of the identity of the children, according to the Tribunal, in a way consistent with the ECtHR in the case Mennesson v. France (201438). By directly enforcing the ECtHR case-law, the Tribunal recognises the prevalence of the social link on the biological
one, in the light of guaranteeing the best interest of the children and their right to identity.
It is possible to conclude, therefore, that on the point of the determination and the impact of the
principle of the best interest of the child, the Italian case-law seems to express some key elements
and normative variables, which orient the T i u als li e of easo i g.
With regard to the determination of the content of such principle, the more recent decisions, in the
light of the implementation of ECtHR case-law, seem to privilege a direct link between the best interest a d a so ial u de sta di g of fa ilial elatio ships, hi h see s to p e ail o the
e e iological one (Varese). At the same time, other factors play a decisive role in defining the impact of the
p i iple, e e
he i te ded a o di g to a so ial pe spe ti e, o the o ete ases i
hi h a
couple has signed a surrogacy agreement abroad: the existence of a genetic link between at least
one of the members of the couple39; the role performed by the principle of the national public order40; the consistency with the lex loci, which is a precondition on the point of criminal responsibility
of couple in the light of the determination of filiation41.
201
Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
202
With regard to the third criteria, a decision of the Tribunal of Pisa (June 2015) contributes to clarify
the approach of Italian judges42. In this case, criminal responsibility of an Italian couple for alterazione di stato following a surrogacy agreement signed in Ukraine and the related declaration of parenthood before the Italian authorities has been denied on the ground of the respect of the lex loci.
The Italian Tribunal particularly outlines that the birth certificate is in compliant to the lex loci and,
therefore, the Italian couple must be considered the legal parents of the children born through suroga . A o di gl , the ouple ould t ha e de la ed so ethi g diffe e t f o
hat effe ti el declared, as there is a dut to espe t Uk ai ia legislatio see also Va ese : the ouple s eha iou ,
therefore, is imposed by Italian law on international private law (articles 15 and 17 of the decree of
President of the Republic n. 396/2000) and seems to be in line with the recent ECtHR case-law, which
the Tribunal of Pisa expressly refers to (Paradiso and Campanelli v. Italy).
In general terms, it is possible to conclude that, according to the existing case-law, the more those
criteria are fulfilled within the specific concrete case, the more judges seem to be open to favour the
social dimension of filiation on the biological/genetic one and to interpret the limit of the public order in the light of the protection of the best interest of the child, as interpreted by the recent ECtHR
case-law43.
5. The right to k o o e’s iologi al origi : a diffi ult ala i g a o g i di idual rights
The use of medical technologies applied to the field of reproduction (i.e. assisted reproduction via
ga etes do atio a d su oga
aises several legal and ethical issues concerning the interests of
subjects involved in these procedures. Among all, a particularly sensitive field is the one related to
the possi ilit to dis lose the do o s o the su ogate othe s ide tit , eithe to the parents or to
the child.
The example we have been referring to, concerning an Italian couple seeking access to surrogacy in
Greece, under the new law, might come across also to this issue and, in this perspective, the legal
framework concerning the protectio of the hild s est i te ests dese es due o side atio
ith
regards to access to information concerning genetic parents or the surrogate.
In this context, there are different legal aspects that might be taken into account.
The first one is related to the possi ilit to k o the do o s ge eti o li i al p ofile fo edi al
reasons, for example in case of need to access data concerning the prevalence of some given diseases. In this case, it seems that both the Italian and the Greek framework might permit the disclosure of those data which are necessary from a medical viewpoint in order to ascertain the relevant
aspects of the genetic profile44.
The decision is available at the following link: http://www.biodiritto.org/index.php/item/684-surrogata-pisa
(last accessed 27.02.2016).
43
M. RIZZUTI, op. cit., 94, reasonably distinguishes between determination of parenthood and regulation of surrogacy, stating that the ECtHR approach does not entail any consequence in terms of legitimacy of national
regulation and criminal sanctions in the context of surrogacy.
44
With regards to the Italian legal framework, the Agreement adopted by Region in the aftermath of the
Co stitutio al Cou t s de isio o.
/
, hi h lifted the a o ga etes do atio , akes lea that
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42
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a ess to do o s li i al a d ge eti i fo atio fo edi al easo s has to e g a ted to the edi al staff,
but it excludes access to those data for the receiving couple.
Similarly, in Greece, as provided by article 8, par. 6, of law no. 3305/2005 and by art. 1460 of the Civil Code,
medical «information regarding the donor is kept in a confidential archive without indi atio of the do o s
identity. Only the child may have access to this archive and only for health related purposes of his own
person».
45
For example, in the UK, The Human Fertilisation and Embryology Authority (Disclosure of Donor Information)
Regulations
a d the
8 to the ele a t legislatio p o ided fo the dis losu e of do o s ide tif i g
information.
46
The law is no. 1140/1985, known as the Genetic Integrity Act, amended in 2006 (2006:351) and available at
http://www.smer.se/news/the-genetic-integrity-act-2006351/ (last accessed 27.02.2016).
47
S. ISAKSSON ET AL., Two decades after legislation on identifiable donors in Sweden: are recipient couples ready
to be open about using gamete donation?, in Human Reproduction, 26(4), 2011, 853. See also M. DENNISON,
Revealing Your Sources: The Case for Non-Anonymous Gamete Donation, in Journal of Law and Health, 21,
2008, 8.
48
Some recent studies investigated the impact of the law in Sweden and its effectiveness, as it seems that not
all parents told their children about donation. S. ISAKSSON ET AL., Two decades after legislation on identifiable
donors in Sweden, cit.
49
With the e p essio a o
ous i th e efe to the possi ility provided by Italian law, that the woman
ho gi es i th de ides ot to e o i ated i the hild s i th e tifi ate. I this ase, the la gua a tees
anonymity and no legal consequences to the mother, whether the child is left for adoption. As we will see,
recently, the issue came to the attention of ordinary tribunals with regards to the request, made by a child
o e a hie ed the ajo age , to k o the othe s ide tit .
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
The second aspect is different and, maybe, more challenging from the legal point of view. Disclosing
the identity of the donor for non-medical reasons, actually, could not be taken for granted, as it
seems that – at the present state of art – there is no consensus among European States on the possiilit of pe itti g a ess to the do o s pe so al ide tit . Mo eo er, those legal orders that enacted
e p ess p o isio s o the ight to ha e a ess to i fo atio o e i g the do o s ide tit a e
characterised by very different legal frameworks and the means by which this right is granted are
significantly different. For example, the information could be requested by the person born after
MAR at the age of 1845, a difference between the type of data to be disclosed is foreseen, and so on.
Among European countries, Sweden became the first one, in 198546, to legally regulate gamete donation and to recognise the right for all offspring «to obtain identifying information about the donor
when they are sufficiently mature»47. For the law to be properly effective, at least two conditions
must be fulfilled: first of all, recipient parents should tell their children about the way they were conceived and, secondly, the offspring should be made aware of the possibility to have access to the doo s e o ds a d should appl to the o pete t autho ities fo do o s data dis losu e48. Quite inte esti gl , se e al a gu e ts a e ade eithe to fa ou o to oppose do o s ide tit dis losu e
to the offspring.
For the purposes of the present analysis, the issue of the right to have access to genetic information
and to the identity of the donor or the surrogate will be taken into consideration comparing the
Greek legal framework and the solution gained in the Italian legal order, after the interventions of
the Constitutional Court on law no. 40/2004 on assisted reproduction and after some judicial decisio s o e i g the de ated issue of a o
ous i th 49 and its outcomes.
203
Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
204
The Italian law on assisted reproduction has been challenged several times before the Constitutional
Court, that – in three major decisions – lifted some of the most restrictive bans of the law50. Among
these, the ope i g to ga etes do atio g a ted de isio no. 162/2014, contributed to a spreadi g of the de ate that opposes those i fa ou fo do o s a o
it a d those pro data disclosure.
Even though we cannot affirm that the Italian legal order has already reached a stand point on the issue, as the new national guidelines on assisted reproduction have just been approved but do not
o tai a p e ise i di atio o ga etes do atio 51, the Agreement reached by Regions in the aftermath of the constitutional decision in 2014 partially addressed the issue and represents – at the
moment – the o l sou e, hi h o pletes the Co stitutio al Cou t s de isio , fo the egulatio of
ga etes do atio i Ital . The ge e al p i iple Italia ‘egio s ag eed o is the o e of do o s a onymity, thereby it will not be possible either for donors or for the couple who received the gametes
to have access to the identity of the others. Just in case of medical necessity, it will be possible – for
healthcare professionals – to e all the do o s li i al data. A pa t f o the e eptio of e t ao dinary medical reasons, therefore, the general rule is the one of complete anonymity of the donor,
both for the receiving couple and the new born52.
It should, anyway, be remarked that the aforementioned document has not the force of law or secondary legislation: it represents an agreement among institutions and its value – from the viewpoint
of sources of law – is debated. Moreover, it is transitory in nature, as in its preamble it is stated that
the document is aimed at granting the effectiveness of fundamental rights recognised by the Constitutional Court, by means of its decision no. 162/2014, in the wait for a legislative amendment. After
the Constitutio al Cou t s de isio , i fa t, the Go e
e t de ided ot to i te e e eithe
a p ovisional decree with the force of law or with a new regulation, preferring to leave the matter to the
Parliament and to permit the exercise of its full discretionary political power. Nevertheless, in order
to g a t a effe ti e a ess to ga etes do atio , ‘egio s o se ed that a ag ee e t o the ai
principles ruling its functioning might be of help, especially for health professionals working in
authorised centres53.
50
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Italian Const. Ct., decision n. 159/2009 on the limit of the simultaneous implantation of three embryos, with
regards to the right to health of the mother; Italian Const. Ct., decision no. 162/2014 on assisted reproduction
ia ga etes do atio ; a d o e e e tl , Italia Co st. Ct., de isio
o. 96/2015 on the access to preimplantation genetic diagnosis for perspectives parents who are not formally infertile but are healthy carriers
of a severe genetic disease that might affect the newborn. An English translation of all decisions is available on
the website of the Italian Constitutional Court.
51
st
The Italian Ministry for Health approved the 2015 guidelines on ART on July 1
. As to ga etes do atio
it is made clear that the discipline will be completed after the final approval of a regulation issued by the same
Ministry and by the National Institute for Health which is also connected to the enforcement of the European
tissues directives.
52
The document adopted by Italian Regions is available, in Italian at this web address:
http://www.biodiritto.org/index.php/novita/news/item/528-conferenza-regioni-e-ppaa-%E2%80%93documento-sulla-fecondazione-eterologa (last accessed 27.02.2016).
53
The efo e, it follo s that a fu the sou e of la o e i g edi all assisted ep odu tio ia ga etes
donation will not necessarily have to be based on the agreement and the document will anyway be overtaken
by a new law or by a legislative amendment. At the moment, a few projects either for the enactment of a new
law on assisted reproduction or for the modification of law no. /
ha e ee p ese ted i the Deputies
Chamber and in the Senate; for no one of them the official legislative proceeding has been started yet.
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
o e’s origi s i Italy: a y possi ility for a
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Al ost o te po a to the Co stitutio al Cou t s de isio a d to the su se ue t ‘egio s Ag eement, the issue concerning the right to k o o e s o igi s a e to the atte tio of o di a t i uals, ith ega ds to the possi ilit to dis lose the othe s ide tit to the hild i the ase of
anonymous birth.
Under Italian law, the woman who gives birth has the right not to be nominated i the hild s i th
certificate54. In this case, the law provides for the right to remain anonymous for the mother; the
child is therefore given for adoption and the relevant law on adoption finds application with regards
to the creation of a legal link between the child and the adoptive parents. Recently, the legitimacy of
these provisions has been challenged before the European Court of Human Rights and, subsequently,
before the Italian Constitutional Court55. The legal issue concerned the unreasonableness of the diffe e e et ee the ight to k o the hild s iologi al o igi s, p o ided
the la o adoptio 56,
and the exclusion of this possibility in the case of anonymous birth (originally provided by art. 28,
par. 7, of the Italian law on adoption).
The case brought before the European Court of Human Right concerned a woman, born after an
anonymous birth, who filled an application to have access to the information concerning her biological mother. The Tribunal, applying the law on adoption, refused her request; therefore, she appealed
to the ECtH‘, affi i g that the T i u al s de ial a d the Italia legal f a e o k iolate he ight to
the respect of private and family life, protected by art. 8 of the Convention. The Strasbourg Court acknowledged that the present legal framework represents the result of a wrong balancing made by
the Italian law-maker between competing fundamental rights and therefore Italy was condemned for
violation of art. 8 ECHR57.
A few months later, a very similar case came to the Constitutional Court, which confirmed the principles established in Godelli. I pa ti ula , the Cou t oti ed that the i e e si ilit of the othe s
anonymity is unreasonable, as the right of the mother must be balanced with the right of the child to
know his/her biological origins, protected by article 2 of the Italian Constitution. Moreover, the Court
found also a violation of the principle of equality, as this right is granted to adopted children, with
the only exception of those born after anonymous birth. The Court finally suggested that it is for the
law-maker to set a balanced system of rules whereby permitting to ascertain the subsistence of the
willingness of the mother to remain unknown.
After a few years, no legislative intervention has followed the Strasbourg Court and the Constitutional Court decisions; therefore the judges that have been called to give the final answer to the re54
DPR 396/2000, art. 30. It is worth noticing, however, that this possibility is explicitly excluded in case of ART,
as provided by article 9, par. 2, or law no. 40/2004.
55
th
The ECtHR decision is Godelli v. Italy, appl. no. 33783/09, decided on 25 September 2012; the Constitutional
Cou t s de isio iso. 278/2013. Both are available at www.biodiritto.org.
56
The Italian law on adoption, law no. 184/1983, provides for the right of the child to have access to the
information concerning his/her biological origins and the identity of his/her biological parents at the age of 25
(art. 28, par. 5). To this end, he/she should fill in an application before the competent juvenile court.
57
For a comment to Godelli v. Italy, see C. SIMMONDS, An Unbalanced Scale: Anonymous Birth And The European
Court Of Human Rights, in The Cambridge Law Journal, 72(2), 2013, 263-266.
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
5.1. The ost re e t after ath of the right to k o
analogical application?
205
Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
206
quest of Mrs. Godelli and those involved in similar issues had to interpret the current legal framework under the lens of the principles established by the two Courts, by ascertaining the willingness of
the mother to reveal her identity (or to remain anonymous) and then disclosing it to the
son/daughter. In the case the mother has already died, the juvenile Court in Trieste has stated that
there is no reason to maintain the anonymity of the mother as there are no competing interests to
be balanced anymore. Conversely, a Court in Turin, just a few months before, hold that the right of
the mother to remain anonymous persists even after the death of the woman. Therefore, without
her consent, her identity could be disclosed to the son/daughter, with the only exception of medical
data58.
Even though this issue raises several interesting issues concerning the correct balancing between
constitutional rights, the possibility to extend this discipline via analogical interpretation to the issue
of assisted reproduction via ga etes do atio ould e highl de ated. It ould e a gued that the
ight to k o o e s o igi s has a rationale in the case of adoption, whereas different principles could
find application in the case of assisted reproduction. In this context, it is worth pinpointing that the
dis ipli e of a o
ous i th a d the o e ted ight to k o the othe s ide tit a e enrooted in
the need to give to the woman an alternative to abortion. Differently, this kind of balancing does not
find place in the case of assisted reproduction, even via ga ete s do atio .
In any case, being the legislative framework concerning assisted reproduction via ga etes do atio
still not completely defined, it seems that it is for the Parliament to decide whether to provide for
the possi ilit of do o s ide tit dis losu e o fo total a o
it , as suggested i the ‘egio s
agreement. It is therefore preferable to enact a specific discipline concerning the rights of children
o afte ga etes do atio , as the pe ulia it of the situatio , the e essa
edi al a d iologi al
intervention require a dedicated legal framework.
5.2. The Greek legal fra e ork o er i g the right to k o o e’s origi s
58
See Juvenile Court of Trieste, 8 May 2015, available at http://www.biodiritto.org/index.php/item/667trieste-parto-anonimo and Turin Court of Appeals, 5 November 2014, available at
http://www.biodiritto.org/index.php/item/666-torino-parto-anonimo (last accessed 27.02.2016).
59
Art. 20, par. 3, of the law no. 3305/2005.
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The Greek legal framework concerning the rights of persons born via ga etes do atio a d su ogacy is more precise than the Italian one. As provided by article 8, par. 6, of law no. 3305/2005 and
by art. 1460 of the Civil Code, medical information concerning the donor must be recorded in the
C op ese atio a k a d i the atio al egist of do o s a d e ipie ts. Mo eo e , do o s identity could not be revealed to the recipient couple, but could be made available only to the child and
just for reasons concerning his/her health59. Whoe e e eals the do o s ide tit o o t a e es to
legislative provisions regarding anonymity and data storage commits a criminal offence.
Therefore, as we could see, oth ou t ies opted fo ai tai i g do o s a o
it , ith the o l
exception of access to clinical data for medical reasons. This solution may represent one of the possible balances among the rights of persons involved, as the right to health of the offspring is guaranteed by the possibility to have access to medical data and records of the donors. With regards to this
profile, it could be interesting to ascertain the correct and complete effectiveness of legal provisions,
The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy
6. Conclusive remarks
The significant progress that was recently noted in the field of MAR methods and the amendments of
the relative Laws of the Member States towards a more liberal regulation of the subject, have contributed to the birth of an important number of children with the use of these methods61, many of
whom are not biologically connected with one of their parents (or both of them). It could be claimed
that the acceptance of surrogacy agreements under a small – but not negligible – number of legislations (among them, the Greek Law), has put into question the principle mater semper certa est. In
this context, considering that this principle reflects a fact that, in the past (before the evolution of
ART), was always true, but, nowadays, its strict implementation fails to describe and regulate in a fair
manner the situations created by the use of some MAR methods such as surrogacy62, one could pro-
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60
It is interesting to point out that, with regards to the Italian legal framework on adoption, art. 28, par. 1, of
the law n. 184/1983 provides that the adopted child shall be informed of her condition. To this end, it is for her
adoptive parents to do it in the more appropriate way.
61
See for example the recent Report of the Italian Minister of Health to the Italian Parliament regarding the
implementation of the Italian Law on MAR for the year 2013 (presented on 26.6.2015), where it is mentioned
that the number of births via MAR methods in 2013 was up to 10.350. The Report is available at
http://www.iss.it/rpma/?lang=1&id=440&tipo=5 (last accessed 27.02.2016).
62
See also the decision of the Supreme Court of Ireland in the case M.R. and D.R. (2014), IESC (7 November
2014) where Judge Denham C.J. stated that the words mater simper certa est «were a simple recognition of a
fact which existed prior to the modern development of assisted human reproduction» (§110). The decision is
available at http://www.biodiritto.org/index.php/item/570-mr-e-dr-surrogazione-irlanda (last accessed
27.02.2016).
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
and the way in which the two countries are enforcing them, for example, with regards to procedures
and time to access data, requirements to be fulfilled, responsibilities on medical professionals and so
on.
The issue o e i g the ight to k o o e s o igi s, oadl i te ded, appea s to be more challengi g he applied to pe so s o afte ga etes do atio o su oga . I this pe spe ti e, a k o ledging the existence of this right and, therefore, legislating to grant its effectiveness (as in the Swedish model), might open the field to more controversial issues, such as the existence of a (legal or
moral) obligation on the recipient parents to reveal to their offspring that they were conceived by
means of access to MAR techniques or surrogacy60. The answer to this moral dilemma rests (and
should remain) upon parents and should be solved within the relationship they decide to establish
ith thei hild e . F o a o al ie poi t, it see s that telli g the t uth ould e the est a to
create stable and certain familiar relationships. Conversely, from a legal point of view, it seems that if
the law- ake de ides to opt fo a dis losu e e ha is , he e pe itti g to the hild o afte ga etes do atio o su oga to ha e a ess to his/he ge eti pa e ts pe so al ide tit , a
duty to tell to the child how he/she was conceived should be created upon parents, in order to make
the ight to k o o e s o igi o pletel effe ti e. At the p ese t state of a t, a
a , it ould e
argued that this decision rests within the national States a gi of app e iatio , as it ould ot e
observed a shared consensus on the issue at a European level.
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Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
208
O the o t a , efo e the i th of the hild, the use of the ite io of a a st a t i te est of the hild
yet born in order to grant the judicial authorization for the process is not justifiable (see supra 2.1.).
63
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pose a new interpretation of the principle, which will respect, above all, the best interests of the
child63.
Such an interpretation should also respect the recent decisions of the ECtHR that interpreted the
est i te ests of the hild a d stated that a child should not be put at a disadvantage because it
was born after a surrogacy agreement. According to the ECtHR, the protection of the best interests
of the hild e ui es that the hild is a le to esta lish the details of his ide tit as a hu a eing,
including the legal parent-child relationship. And, in the case of a child born via surrogacy, the existe e of a de facto fa il
et ee hi a d the ouple, as ell his ight to ha e a e tai a d stable parenthood relationship should prevail upon any legal restriction and result in the recognition of
parenthood. Therefore, the meaning of the principle mater semper certa est should follow the recent
case law – and this could be possible by two ways: either by the complete abolition of the principle
or by rereading it in a way that distinguishes between the biological mother, namely the woman who
gave birth to the child, the genetic mother (the one that donated the genetic material) and the legal
mother (the woman who legally undergone MAR to have a child). The existence of a biological link
between the child and one or both the members of the couple should not be regarded as an indispensable condition, but only as an additional one for the acceptance of legal parenthood, as our societies seem to have already accepted that the social understanding of familiar relationships prevails
on the biological or genetic one.
On this regard, the comparative analysis of the Greek and Italian approaches to surrogacy agreement
has shown how legal orders implementing opposite legal frameworks can be interlinked, in terms of
effects of the access of Italian couples to the Greek legal context. This is inevitable, according to the
principle of free movement of people and to the broad margin of appreciation to be recognised to
each State in such ethically and socially sensitive context: at the same time, this phenomenon reveals
the need for a national legal system to taking into account the effects of such phenomenon (surrogacy agreement abroad) within its own territory, in order to regulate them in a express, transparent
and unambiguous way. It means that, whether it is not possible (and even appropriate) to call for a
general acceptance of such technique at the national level, it is at the same time advisable, in terms
of coherency and certainty, to call for a specific regulation of the effects of it with regard to the determination of parenthood based on a surrogacy agreement (legitimately, according to the lex loci)
performed abroad.
The effects of such phenomenon on the Italian legal order have clearly shown the need for shared
common standards in this context, in order to avoid the threat of an excessively diverging and unpredictable case-law: even confirming the absolute ban of surrogacy agreement at the national level,
it is a Pa lia e t s espo si ilit e e tuall
delegati g this fu tio to the Go e
e t to p ovide for a regulation of parenthood in those cases, in the light of a full and adequate protection of
the best interests of the children born through surrogacy agreements, without denying – in accordance with the national competences and within a broad margin of appreciation – protection to possible counter-i te ests, su h as o a s e ploitatio , e tai t of pa e tal elatio ships a d the
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In this sense, it seems to be of paramount importance the recent decision by the Irish Supreme Court in a
case concerning surrogacy, whereby the Court, dismissing the pa e ts appeal agai st the de ial of e og itio
of parenthood for the social mother, stated that this is a matter that has to be regulated by the Parliament:
«The issues raised in this case are important, complex and social, which are matters of public policy for the
[Parliament]» Irish Supreme Court, M.R. and D.R [2014] IESC 60 (7 November 2014).
65
See Costa e Pavan v. Italia, appl. no. 54270/10, 28.08.2012. The need for an internal consistency of the legal
framework has been already required by the ECtHR in its case law concerning national restrictive regulations
on abortion. See P. e S. v. Poland, appl. no. 57375/08, 30 October 2012, par. 99: «once the State, acting within
its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not
structure its legal framework in a way which would limit real possibilities to obtain an abortion».
BioLaw Journal – Rivista di BioDiritto, n. 1/2016
Essays
la ket lause ep ese ted
the p i iple of pu li o de 64. From the ECtHR case-law, it seems
possible to derive relevant principles and criteria, which should be easily and efficiently implemented
also at the national level: this process has been already inaugurated by the judiciary, but the entry
into force of normative general standard to be implemented to each concrete case seems to be advisable, in order to guarantee a higher level of certainty and predictability and to avoid the judiciary,
which must be – and it is designed as – a last instance means, but turns itself in an ordinary regulato tool, ei g fo ed to su ogate Pa lia e ta fu tio .
On this regard, the Italian case-law seems to show that variables such as the legitimacy of the
agreement according to the lex loci, the existence of a biological link with at least one of the members of the couple, on the one hand, and the best interests of the new-born child and the principle of
national public order must be taken into account at the time of implementing a general regulation of
the legal effects of surrogacy agreement signed and performed abroad.
In this perspective, with specific regard to the best interests of the child, an aspect that should duly
be taken into account by Parliaments while legislating on the matter is the one concerning the rights
of children involved. The first dimension, as we have already underlined, is the one concerning the
certainty of family relationships: this is an issue that involves, on the first instance, social parents,
meaning those who started the process of surrogacy, but that has also remarkable consequences on
the life of the child. Secondly, in connection to this profile, the need to properly address the right to
k o o e s ge eti o igi s should also e at the o e of legal regulation. Given that at the moment
there is no shared common standard among European States on the matter, we could not argue that
one specific model could take prevalence among another one. Nevertheless, the law-maker should
bear in mind that, in compliance with the case law of the European Court of Human Rights, when a
decision is taken, the legal framework should be drafted in a coherent way, as to avoid legal uncertainties and inconsistencies with other relevant disciplines65.
The comparison between Italy and Greece shows one more aspect that deserves due considerations
ith ega ds to the “tates a gi of app e iatio i the egulatio of ethi all se siti e atte s:
given the social phenomenon of cross-border reproductive care and in consideration of the free
movement principles operating within the European Union, the question is whether EU States opting
fo a est i ti e egi e should p o ide fo fle i ilit lauses to p ope l add ess the eeds of people travelling to another country to legally get what is prohibited at home.
Finally, with specific regard to the issue of surrogacy, it is worth pointing out that national prohibitions are forcing those who cannot naturally conceive to travel abroad to satisfy their parenthood
desire. Given the ban on surrogacy provided by several legislations in European countries and the le-
209
Lucia Busatta, Theodora Chortara, Simone Penasa
Essays
210
gal uncertainties on the recognition of parental relations, several couples are seeking surrogacy
agreements in states were a laissez faire regime permits commercial surrogacy. Fears of exploitation
on poorer women living in developing countries66 should serve as an incentive for European countries to address the issue of surrogacy and to try to find, at a national level, a balanced solution which
is both respectful of the fundamental rights of persons involved and adherent to political and ethical
choices States can adopt within their wide margin of appreciation.
S. MOHAPATRA, Achieving reproductive justice in the international surrogacy market, in Annals Of Health Law,
21(1), 2012, 191. See also see the report Birthing a market. A study on commercial surrogacy, Sama – Resource
Group for women and health, New Delhi, 2012.
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