What Happens When A Court Rules That Twins Aren't Related?
It could have been worse; this is actually a partial victory for the parents.
Aristocrats: They’re Just Like Us! Before diving into our main story, I wanted to send congratulations to my new favorite British aristocrats, the Viscountess and Viscount Weymouth. The couple welcomed their second son on December 30, 2016. In what is likely a first for the British aristocracy, the child was born via surrogate.
The baby boy is the second grandson of the 7th Marquess of Bath. I’ll just assume this is kind of a big deal in England. Lady Weymouth suffers from medical complications that made a second pregnancy too dangerous. So the couple turned to a California surrogate. To their credit, they are reportedly sharing their story to help remove some of the stigma associated with surrogacy. Welcome and all hail the Honourable Henry Thynn. No typo. Honorable is spelled that way on purpose.
What do you call the Act where English royalty help normalize alternative reproductive technology in Britain? The Aristocrats!
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Now, for our main story. The latest fascinating legal holding dealing with assisted reproductive technology comes from an Italian court. A ruling there determined that twins — conceived from eggs of the same woman and carried and born of the same surrogate (but the surrogate is not the same woman as the egg donor, just to be clear) — were not actually legally related. How can this be?
Italy Is Not A Great Place To Be Gay. The parents of the twins are a gay Italian couple. While the U.S. made the move to permit gay marriage in 2015, Italy still denies same-sex couples the right to marry. Italy also denies gay couples the right to adopt children. Italian same-sex couples can’t even adopt their own family members through kinship adoptions. And, unsurprisingly, there is no same-sex step-parent adoption since gays can’t marry in the first place.
Having limited family-building options, the couple turned to an egg donor and California surrogate to conceive their children, and complete the family they dreamed of. Two embryos were transferred to the same surrogate. One was a donor egg fertilized with sperm from dad 1; the second was a donor egg, but this time fertilized with sperm from dad 2. The twins are biologically half-siblings with the same birthday. The conditions for an Arnold Schwarzenegger/Danny DeVito situation probably couldn’t have been set any higher.
This Is What Partial A Victory Looks Like. The fathers returned from the United States to Italy with their twins in tow. But the Italian government initially refused to recognize the children as (1) sons of the fathers, and 2) eligible for Italian citizenship. The fathers’ appealed, and were able to obtain what many consider a victory.
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The court determined that despite the children being born to a gay couple (strike 1), using donor eggs (strike 2 – donating eggs and/or sperm is illegal in Italy) and to a surrogate (strike 3 – surrogacy is also illegal in Italy), it would be in the children’s best interest for Italy to recognize the parent-child relationship. The court awarded parental rights of each individual twin to the genetically related father.
It Could Have Been Much Worse. While this was not a complete victory, it was a step forward for Italy. In prior cases, an Italian court has denied parentage to both parents — or even taken away a surrogate-born child from the parents and made the child a ward of the state! In an infamous case from 2014, an infertile couple in their 50s — who had been turned down for adoption three times — turned to surrogacy. They paid a Ukrainian surrogate €25,000 to carry a child conceived with donated genetic material. When they brought the child back to Italy, the government refused to register the child as theirs and charged them with fraud. Sadly, the court went further, ruling that the child, whose genetic and surrogate parents were unknown, was a “child of no one.” Despite even an Italian prosecutor advising that the child be allowed to stay with the intended parents, the court ruled that the child must become a ward of the state and put up for adoption. Heartbreaking.
Europe’s Anti-Surrogate Tendencies. Italy is not an anomaly. Most of Western Europe (including France, Spain, and Germany, among others) bans surrogacy. This has led to a number of troubling cases when Europeans go elsewhere for surrogacy and then try to bring their children home. In France, for instance, several surrogacy cases have involved French courts denying parental rights. But couples have had success appealing to the European Court of Human Rights. There, a child’s right to his or her parents has prevailed over French domestic law.
For our Italian case, it’s a bizarre result that the twins will not be recognized as brothers. However, it is positive to see the court recognizing each father’s right to parent their own genetic child, no matter how that child was conceived. While Italy, and most of Europe, and most of the world, really, has a long way to go, it’s good to see at least baby steps.
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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
