Articles

Senza identità: il caso Paradiso e Campanelli c. Italia

M. M. WINKLER

GenIUS - Rivista di studi giuridici sull'orientamento sessuale e l'identità di genere

2015, vol. 1, pp.243-257

Départements : Droit et fiscalité, GREGHEC (CNRS)

http://www.articolo29.it/wp-content/uploads/2015/07/genius-2015-01.pdf


The present note is a commentary to the ruling rendered by the European Court of Human Rights on 27 January 2015 in the case Paradiso and Campanelli v. Italy (no. 25358/12). The case concerned an Italian couple who,after a long wait for adoption and in the impossibility of resorting to artifcial insemination, decided to go to Russia and agreed with a surrogate mother to give birth to their child. Surrogate motherhood is well-regulated in Russia, but prohibited in Italy, where the couple was then subject to a series of trials that ultimately resulted in the child’s transfer to another family. The European Court reproached Italy for not having properly evaluated the best interest of the child, for it had ordered the child’s transfer having uniquely in mind the conduct of the intended parents, accused of defrauding and circumventing the surrogacy prohibition in force in Italy. This commentary argues, in light of both the European Court’s precedents and the experiences of various European countries, that Italian courts should adopt a more comprehensive approach towards cases involving children, including a more reasonable understanding of the concrete issues at stake, and therefore consider that the preservation of the existing family, even if formed in violation of the surrogacy prohibition in force in Italy, might be the more suitable option for protecting the child’s best interests — a solution that seems still unfortunately contradicted by the current Italian case-law


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