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The Grand Chamber of the European Court of Human Rights (ECHR) has ruled that Italy did not violate the rights of a couple by removing a child they were caring for as a result of a surrogacy agreement made in Russia. The facts of the case differed from other surrogacy cases that have come before the ECHR, in that the child was not biologically related to either of the intended parents bringing the case. After attempting unsuccessfully to have a child, the couple had approached a Russian surrogacy agency. The couple claimed that they provided the husband’s semen to the clinic and, after in vitro fertilisation, two embryos were implanted into a surrogate mother’s womb. After returning to Italy with the child born as a result and attempting to register the birth, Italian prosecutors launched criminal proceedings against the couple for allegedly misrepresenting their relationship with the child. During the investigation, it emerged that the child was not biologically related to the couple and the child was removed from their care. The child was initially placed in a children’s home followed by foster care and at the time of the case, was going through the adoption procedure.

The case was solely an application on behalf of the intended parents, as the court found that as they had not been caring for the child for two years by the point the case reached the ECHR, they did not have authority to act on behalf of the child. Nonetheless, the court did place emphasis on the best interests of the child in reaching its decision, but accepted that “the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in this case.” The case overturns a judgment from 2015 and could have serious consequences for children born of surrogacy when it is prohibited by the home country of the intended parents.

Bron: Nieuwsbrief CRIN (Childs Rights International Network)