A Child Without Parents, A Decision Without Logic, And More Reasons Not To Like Russia
A true nightmare for aspiring parents.
As readers of this column know, it’s become common for a woman to act as a surrogate—or gestational carrier—for another couples’ baby. Sometimes, the baby is related only to one of the people—or intended parents—making up that couple. For instance, a gay couple might use an egg donor to combine gametes with their sperm, and then use a surrogate to deliver the baby.
But what happens when the intended parents use an egg donor, a surrogate, and a sperm donor? In that case, the baby isn’t genetically related to any other person in the legal relationship. In the United States, and California in particular, courts have generously looked to the intent of the intended parents, and have been comfortable awarding parental rights despite a lack of genetic connection.
Some countries, however, do not look so kindly on this type of arrangement. And they look even less favorably on it if the whole situation was the product of Russian incompetence. But before diving into how much Italy screws up reproductive technology cases, let’s look at the latest surrogacy updates!
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The Travel Ban and Surrogate Babies. Good news! The travel ban (or pause-in-travel-by-people-who-may-happen-to-be-Muslim-while-extreme-vetting-measures-are-considered) has been stayed for the time being. The intended parents I discussed last week now should be able to travel to the United States. While we all can agree that terrorism is tragic and something we want to prevent, hopefully future efforts will allow non-terrorist intended parents to attend the birth of their surrogate-carried children. (As for terrorist-intended parents, hey, get your priorities straight!).
Olympic Surrobaby. Did you know that Missy Franklin, the five-time Olympic gold medalist swimmer, was delivered by a surrogate?! In a recent interview, Franklin discussed both her performance in the Rio Olympics and the close relationship her family has with her surrogate mother. I can’t say definitively that having a child via a surrogate will increase your child’s chance of going to the Olympics. But I can guarantee that it will. (Not really.)
A Baby of No One. Now onto the latest European Court of Human Rights case addressing surrogacy. The ruling in the Italian “Paradiso and Campanelli” case follows on the heels of the recent ECHR order requiring France to recognize the parental relationship between a surrogate-born child and his intended parents. In this case, however, the court went in the other direction.
After years of struggling with infertility and unsuccessful treatments, two people who sound like they are probably very beautiful—Paradiso and Campanelli—turned to a Russian fertility clinic to conceive a child. Paradiso testified that she transported her husband’s sperm, protected along the way by an intrepid moose and squirrel, to a Russian clinic for it to be combined with anonymous donor eggs and for resulting embryos to be transferred to a surrogate.
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The Russian clinic confirmed to Paradiso and Campanelli that Campanelli’s sperm was successfully used in the conception of a baby boy. Paradiso then traveled to Moscow for the birth of the couple’s son. She also obtained legal documents in Russia confirming herself and Campanelli as the child’s parents. But when she returned to Italy, the nightmare began.
Surprising Genetic Tests. When Campanelli tried to register their son in Italy, a prosecutor charged the couple with fraud related to the child’s documents. Italy also insisted on genetic testing of the child and, to the great surprise of Paradiso and Campanelli, the child was not related to them at all. Nor to any known person!
The couple, unsurprisingly, sought an explanation from the Russian clinic. The Russian clinic wasn’t of much help. It said it was also surprised—oh really?—by the results of the DNA test. After an internal investigation, the clinic came up empty on answers, and said that they’d never be able to identify the true parents of the baby. Or, apparently, the actual baby of the Italian couple. But no grossly negligent Russian clinic could change the fact that Paradiso and Campanelli still wanted to raise a child that they had initially believed to be theirs.
An Unhappy Ending. Social workers visiting the home of Paradiso and Campanelli reported to the Court that the couple “were viewed positively and respected by their fellow citizens, and that they had a comfortable income and lived in a nice house.” They also found that while the baby boy lived with the couple, he “was in excellent health and his well-being was self-evident.”
Despite these reports, Italy removed the baby boy from the care of the couple until foster parents could be identified. While initially Italy was found in violation of the European Convention of Human Rights, the ECHR reversed the earlier decision, holding that Italy’s actions were justified, and the child’s removal not a violation of the Convention.
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To be sure, this wasn’t a great situation. But it’s hard to see how it benefits a parentless child to be put into an orphanage or indefinite foster care. And in comparing this case to other ECHR surrogacy cases, a takeaway is that intended parents may need to have a genetic relation to their surrogate-born child to have any security. However, Italian attorney Alexander Schuster provides some hope: “I do not think this judgment will be followed by Italian courts. A genetic link to establish parenthood is not always necessary. Italian law on this point was misrepresented to the Court. Italy is still struggling as to how to deal with surrogacy, but we have moved forward in understanding the phenomenon and protecting the child.”
This case also reminds us that intended parents should be very careful about the reproductive clinic they choose to work with. We can only hope that the wounds of this experience heal for Paradiso and Campanelli as well as the child, who, with some luck, may even be Italy’s next Olympic gold medalist.
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 babies@abovethelaw.com.
