L’allontanamento del minore come extrema ratio anche in caso di maternità surrogata: la Corte di Strasburgo condanna l’Italia per violazione della vita familiare

The Paradiso and Campanelli case is the first condemnation inflicted on Italy for a violation of art. 8 Cedu in a surrogate maternity scenario. The Italian authorities’ decision to subtract a child, born outside of Italy by means of a surrogate, from an Italian couple constitutes an infringement of the right to respect for private and family life even if there is no biological connection between the couple and the child. This case is similar to another decided by the Italian Court of Cassation in November 2014 although the outcome was completely opposite. In fact, the Supreme Court rejected the Italian couple’s petition for the recognition of a filial relationship with a baby, born in the Ukraine by means of a surrogate, on the grounds that it was devoid of biological connection. The Italian Court ruled to confirm the state of abandonment of the child declared by the Italian authorities and removed him from the Italian family. The crucial point of the European Court’s decision lies in the recognition of the existence of a de facto “family life”, deserving of protection under Art. 8 Cedu without regard to the lack of a biological tie between the child and the intended parents, finding that the overriding issue is the time spent with the child during the first important moments of his or her young life. In conclusion, this ruling finds an important place in groundbreaking jurisprudence which, basing its conclusions on a social standpoint, testifies an important transformation in the notion of “family life” deserving of protection under Art. 8 Cedu: a notion that is growing rich with complexities and is breaking free from the sacrosanct genetic relationship between parents and child.