The North Carolina Journal of International Law (ILJ) at the University of North Carolina held their annual symposium on October 27, 2017. The symposium this year invited scholars to speak on International Surrogacy.
Professor Richard Storrow of CUNY’s School of Law specializes in human rights and reproductive justice. He spoke at the symposium on the role the controversial but critical role that the European Court of Human Rights (ECHR) plays in normalizing and protecting children born of international surrogacy.[i]
Storrow spoke at length about the attitude towards international surrogacy in various European countries, specifically several legal cases taking place in France and Italy. Culturally, these European nations view international surrogacy with suspicion and disdain, if not complete abhorrence. In France especially, biological connections between a parent and child are preferred. Even having a genetic link with one parent is not sufficient. Children born of surrogacy are not granted citizenship; once such children reach the age of majority, they are at risk of deportation and statelessness. In Italy, international surrogacy is not viewed as harshly as in France but the biological connection between a parent and a child is still very important and the basis on which citizenship is granted to a child.
Professor Storrow then spoke about the way in which ECHR handles these international surrogacy cases generally. These suits are brought by individuals against states. There are two claims that a party can make – that their right to family life has been breached or that their right to private life has been breached.[ii] Often parties make both arguments. The family life claim is often made on behalf of the parents, while the private life claim is on behalf of the children. The government may impose restrictions if a three-part test is met:
- If the restriction is in accordance with the law of that country;
- if the restriction is legitimate; and
- if the restriction is necessary to a democratic society.[iii]
ECHR gives a wide deference is given to countries and what they deem necessary to their individual societies, even over controversial issues. However, the ECHR will often dismiss family life claims as seen in recent international surrogacy cases.[iv] The ECHR seems to hold the belief that parents should have known the laws of their country and the national attitude towards international surrogacy before seeking the option.
In the private life claim, again, brought on behalf of the children, the ECHR has been less deferential to countries. The Court requires a strong showing of proportionality from the country to prove that its actions are appropriate.[v] And when the court compared a country’s reasoning to the fact that a child holding citizenship creates a fundamental aspect of their identity and nationality, the ECHR could not find that the government could be allowed to impose restrictions into a family’s private life.[vi]
However, there are exceptions. In an Italian case, a family obtained an international surrogate and thus had a child with no genetic connection to them.[vii] This family attempted to return to Italy with the child.[viii] Italy refused to recognize intended parenthood and removed the child into state custody where it was later adopted by a different family.[ix] The court here ruled that the three-part test was met in both family life and private life and the government of Italy was permitted to impose restrictions on both.[x]
Overall, Storrow argues that the European Court of Human Rights has been commendable. It has, for the most part, presented a standard by which international surrogacy cases should be handled. The ECHR has separated the idea of parents breaking their own national laws, and the rights of children. Parents who engage in illegal international surrogacy can be censured or sanctioned, but not to the detriment of the children, who cannot be left stateless and parentless. The European Court of Human Rights has been a positive force in promoting this balance, at least in Europe.
[i] Richard Storrow (Professor of Law, CUNY School of Law), Address at the University of North Carolina International Law Journal Symposium: International Surrogacy in the European Court of Human Rights (Oct. 27, 2017).
[ii] ECHR Says Removal of Infant From Surrogate Parents Interfered With Right to Respect For Private Life But Was Justified Under National Laws, Human Rights Law Centre (January 24, 2017).
[iv] See Labassee v. Franc, 2014 Eur. Ct. H.R. See also Mennesson v. France, 2014 Eur. Ct. H.R.
[vii] Paradiso and Campanelli v. Italy, 2015 Eur. Ct. H.R.