Wednesday, March 8, 2017

Italian court recognises gay couple as parents through surrogacy

Following a process lasting a long seven years, from inception of the surrogacy journey to the conclusion of the court process, an Italian gay couple has waited to find out if they were the legal parents of their children born through surrogacy in Canada.

In a landmark decision, the three judge Court of Appeal in Trento decided that the couple were both the parents- even though Italy bans any form of surrogacy.

One of the men was the biological father of the children. The Canadian court had ordered that both men be recognised as the parents. The childrens' birth certificates had, following the Canadian court orders, been altered to recognise that the men were their parents.

The men tried to register the births back home in Italy- and failed, because the registrar said that surrogacy was against public policy. The men therefore took the matter to court, and ended up in the appeal court.

The Italian court relied on an Italian law concerning private international law, and a recent decision of the Italian Supreme Court where two women had had a child in Spain via IVF.

The children's right to privacy under the International Convention on the Rights of the Child

The court also said that the children's right was implicit in Article 8 of the International Convention on the Rights of the Child. It provides:

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

This reasoning is similar to an English case where the court held that a surrogacy order ought be made for a child- named as X in the report-  in part because of the child's right to an identity under Article 8, and:

"This case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has... a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what [was] referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible."

Australia is a party to the Convention, as is every other country other than the United States. In Australia, governments and courts are expected to take the Convention into account in decision making, except when Parliament has clearly provided otherwise. In the Family Law Act there is specific mention as to the Convention, so that it is to be given effect.

A comity or mutual respect approach

Significantly, the court accepted that the Canadian decision should be respected based on a comity or mutual respect approach. The court said that although surrogacy is banned in Italy, that ban is not enough to deny the recognition of such foreign measures, issued in accordance with the law applicable in the country of origin, to recognise a parent-child relationship between the non-biological parent and the children born from surrogacy in the framework of a parental project.

This approach is essentially the same approach taken in Germany's highest court concerning a surrogacy order in the US, and the European Court of Human Rights concerning US surrogacy orders. Surrogacy is banned in Germany. The European Court of Human Rights decisions concerned children born to French parents. Surrogacy is banned in France.

It is also similar to the approach taken in the Family Court in 2013 concerning a South African man, where his parentage granted through a South African court order was recognised in Australia.

The sins of the fathers should not be visited upon defenceless children

The court said:

‘the consequences of the violation of the rules... committed by adults should not fall back on the new born’.

This was similar to what the Australian Human Rights Commission successfully argued in the Family Court of Australia in 2012:
“the court is faced with having children in front of it and needs to make orders that are in the best interests of those children, and at that stage it’s probably too late to ask whether – or to inquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them".

Comment about the comity approach

The comity approach is one that I have argued for since 2011,  when I first met renowned US surrogacy lawyer Steve Snyder, and other members of the ART Committee of the American Bar Association. Comity formed the basis of a policy paper I co-wrote with Bruce Hale, which then became the policy of the American Bar Association in 2016 about a proposed Hague surrogacy convention. The best protection for children is that their legal status is secured, and one of the simplest and most straightforward ways of doing this is that if there has been a judicial process overseas to recognise the parent-child relationship between the intended parents and the child, then that process should be recognised in other countries, including the child's country of residence.

Congratulations to Alexander Schuster

Finally I want to extend my congratulations to advocate Alexander Schuster who was able to advise, guide and plan the matter for his clients, that resulted in such an outstanding win- a win for his clients, but much more importantly, secured the legal rights deserved by their children.

Congratulations Alexander!


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