EHRM, 24-01-2017, nr. 25358/12

As part of the proceedings to make the child available for adoption which were then pending before the Minors Court (see paragraph 22 above), the applicants asked a psychologist, Dr I., to prepare a report on the child's well-being. The report drawn up by Dr I. on 22 September 2011, after four meetings with the child, indicates that the applicants — who were attentive to the child's needs — had developed a deep emotional bond with him. The report indicated that the grandparents and other family members also surrounded the child with affection, and that he was healthy, lively and responsive. Dr I. concluded that the applicants were suitable parents for the child, both from a psychological perspective and in terms of their ability to educate him and bring him up. She added that possible removal measures would have devastating consequences for the child, explaining that he would go through a depressive phase on account of a sense of abandonment and the loss of the key persons in his life. In her opinion, this could lead to somatic symptoms and compromise the child's psycho-physical development, and, in the long term, symptoms of psychotic pathology could emerge.

The applicants asked for the child to be placed with them, with a view to adopting him if necessary.

By an immediately enforceable decision of 20 October 2011, the Campobasso Minors Court ordered that the child be removed from the applicants, taken into the care of the social services and placed in a children's home (casa famiglia).

The relevant passages of the Minors Court's decision read as follows:

In the court's view, the applicants had thus placed themselves in an unlawful situation:

The court therefore found it necessary, first and foremost, to put an end to this unlawful situation:

According to the applicants, the court's decision was enforced on the same day, without their having been informed of the decision in advance.

The applicants lodged an appeal (reclamo) before the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not contest the Russian birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings against them and the proceedings challenging the refusal to enter the birth certificate in the Italian civil-status register were pending.

By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal.

The Court of Appeal found that the child T.C. was ‘in a state of abandonment’ (in stato di abbandono) within the meaning of section 8 of the Adoption Act, as the applicants were not his parents. In those circumstances, the question of whether or not the applicants were criminally liable and whether or not there had been an error in the use of seminal fluid of unknown origin was not, in its view, relevant. In the Court of Appeal's opinion, it was not appropriate to await the outcome of the criminal trial or of the proceedings brought by the applicants to challenge the refusal to enter the particulars of the birth certificate in the register. The Court of Appeal also considered that section 33 of Law no. 218/95 (the Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State, and that there was no issue of lack of jurisdiction, since, according to section 37bis of the Adoption Act, ‘… the Italian law governing adoption, fostering, and necessary measures in case of urgency shall be applicable to a foreign minor child who is in [Italy] in a state of abandonment’ (cf. also Cass 1128/92)’.

No appeal to the Court of Cassation lay against that decision (see paragraph 68 below).

Under section 33 of the Private International Law Act 1995 (Law no. 218), the legal parent-child relationship is determined by the national law governing the child at the time of his or her birth.

Presidential Decree no. 396 of 3 November 2000 (Simplification of Civil Status Act) provides that declarations of birth concerning Italian nationals which have been drawn up abroad must be transmitted to the consular authorities (section 15). The consular authorities transmit a copy of the documents, for the purpose of their entry in the civil-status register, to the municipality in which the individual concerned intends to take up residence (section 17). Documents drawn up abroad cannot be entered in the register if they are contrary to public order (section 18). In order to have full legal force in Italy, foreign decisions (provvedimenti) in respect of persons' capacity or the existence of family relationships must not be contrary to public order (section 65).

Section 4 of Law no. 40 of 19 February 2004 (the Medically Assisted Reproduction Act) prohibited the use of heterologous assisted reproduction techniques. Failure to comply with this provision entailed a financial penalty ranging from EUR 300,000 to EUR 600,000.

In judgment no. 162 of 9 April 2014, the Constitutional Court found these provisions to be contrary to the Constitution where the above prohibition concerned a heterosexual couple suffering from proven and irreversible sterility or infertility.

In the same judgment, the Constitutional Court held that the prohibition on surrogate motherhood imposed by section 12 § 6 of the Act, was, on the contrary, legitimate. That provision makes it an offence to carry out, organise or advertise the commercialisation of gametes, embryos or surrogate motherhood. The penalties incurred are imprisonment, ranging from three months to two years, and a fine, ranging from EUR 600,000 to 1,000,000.

In judgment no. 96 of 5 June 2015, the Constitutional Court again examined the prohibition on using heterologous reproduction techniques and held that the relevant provisions were unconstitutional in respect of couples who are fertile but are carriers of serious genetically transmitted diseases.

The provisions concerning the procedure for adoption are set out in Law no. 184/1983 (‘the Adoption Act’), as amended by Law no. 149 of 2001, entitled ‘The Child's Right to a Family’.

Section 2 of the Act provides that a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, if possible including other minor children, or with a single person, or with a family-type community, for the purposes of providing him or her with support, an upbringing and education. If it is not possible to provide him with a satisfactory family environment, a minor may be placed in a public or private children's home, preferably in the area in which he has been living.

Section 5 of the Act provides that the family or person with whom the minor has been placed must provide him or her with support, an upbringing and education, taking account of instructions from the guardian and in compliance with the judicial authority's directions. In any event, the foster family exercises parental responsibility with regard to relations with the school and the national health service. The foster family must be heard in the proceedings on placement and the proceedings concerning the order that the child is available for adoption.

Section 6 of the Act lays down age limits for adopting. The difference in age between the child and the adopting parent must be a minimum of eighteen years and a maximum of forty-five years, a limit which may be extended to fifty-five years for the second adopting parent. The minors courts may derogate from these age limits where they consider that the fact of not proceeding with the child's adoption would be harmful to him or her.

Furthermore, section 7 provides that adoption is possible for minors who have been declared available for adoption.

Section 8 provides that ‘the Minors Court may, even of its own motion, declare … a minor available for adoption if he or she is in a state of abandonment in the sense of being deprived of all emotional or material support from the parents or the members of his or her family responsible for providing such support other than in temporary cases of force majeure’. Section 8 continues: ‘A minor shall continue to be considered in a state of abandonment … even if he or she is in a children's home or has been placed in a foster home.’ Lastly, section 8 provides that a case of force majeure shall be deemed to have ceased where the parents or other members of the minor's family responsible for providing support refuse assistance from the authorities and the court considers their refusal unjustified. The fact that a minor is in a state of abandonment may be reported to the authorities by any member of the public or noted by a court of its own motion. Furthermore, any public official and any member of the minor's family who is aware that a child is in a state of abandonment must report the situation to the authorities. Children's homes must keep the judicial authorities regularly informed of the situation of minors whom they take into their care (section 9).

Section 10 then provides that, pending a minor's placement in a foster home before adoption, the court may order any temporary measure which is in the minor's interests, including, if necessary, the suspension of parental responsibility.

Sections 11 to 14 provide that enquiries shall be made so as to clarify the minor's situation and determine whether he or she is in a state of abandonment. In particular, section 11 provides that where, in the course of these enquiries, it transpires that the child does not have contact with any member of his or her family up to the fourth degree, the court may issue a declaration that he or she is available for adoption, unless an adoption application has been made within the meaning of section 44 of the Act.

If, at the end of the procedure provided for in the above sections, the minor is still in a state of abandonment within the meaning of section 8, the Minors Court shall declare him or her available for adoption if: (a) the parents or other members of the family have not appeared in the course of the proceedings; (b) it is clear from interviews with them that they are still failing to provide the child with emotional and material support and are unable to remedy the situation; and (c) measures ordered under section 12 have not been implemented through the parents' fault (section 15). Section 15 also provides that a declaration that a minor is available for adoption shall be made in a reasoned decision of the Minors Court sitting in chambers, after it has heard the Public Prosecutor, the representative of the children's home in which the minor has been placed or any foster parent, the guardian, and the minor if he or she is aged over twelve years or, if aged under twelve, where this is deemed necessary.

Section 17 provides that an objection to a decision declaring a child available for adoption must be lodged within thirty days of the date of notification to the requesting party.

Under section 19, parental responsibility is suspended while a minor is available for adoption.

Lastly, section 20 provides that a minor shall no longer be available for adoption if he or she has been adopted or has come of age. Moreover, a declaration that a child is available for adoption may be annulled, either by the court of its own motion or at the request of the parents or the Public Prosecutor, if the conditions laid down in section 8 have in the meantime ceased to apply. However, if the minor has been placed with a family with a view to adoption (affidamento preadottivo) under sections 22–24, the declaration that he or she is available for adoption cannot be annulled.

Section 44 provides for certain cases of special adoption: adoption is possible for minors who have not yet been declared available for adoption. In particular, section 44 (d) authorises adoption when it is impossible to place the child in alternative care pending adoption.

Section 37bis of this Act provides that Italian law applies to foreign minors who are in Italy and who are in ‘a state of abandonment’ with regard to adoption, placement and urgent measures.

In order to be able to adopt a foreign minor, persons wishing to adopt must contact an organisation that is authorised to look for a child (section 31) and the Commission for International Adoptions (section 38). The latter is the only body that is competent to authorise the entry and permanent residence of a foreign minor in Italy (section 32). Once the minor has arrived in Italy, the minors court orders that the information on the adoption decision be transcribed into the civil-status register.

Under section 72 of the Act, any person who — in violation of the provisions set out in paragraph 66 above — brings into the territory of the State a foreign minor, in order to obtain money or other benefits, and in order that the minor be entrusted permanently to Italian citizens, is committing a criminal offence punishable by a prison term of between one and three years. This sanction also applies to those persons who, in exchange for money or other benefits, accept the ‘placement’ of foreign minors on a permanent basis. Conviction for this offence entails disqualification from fostering children (affido) and from becoming a guardian.

Under Article 111 § 7 of the Italian Constitution, appeals to the Court of Cassation to allege violations of the law are always possible against judgments or measures affecting personal freedom. The Court of Cassation extended the scope of this remedy to civil proceedings where the impugned decision has a substantial impact on situations (decisoria) and where it cannot be varied or revoked by the same court which delivered it (definitiva).

Decisions concerning urgent measures with regard to a child in a state of abandonment, taken by the minors court on the basis of section 10 of the Adoption Act (Articles 330 et seq. of the Civil Code, Article 742 of the Code of Civil Procedure) may be varied or revoked. They may be the subject of a complaint before the court of appeal. No appeal on points of law can be made in respect of decisions that may be varied and revoked at any point (Court of Cassation, Section I, judgment of 18 October 2012, no. 17916).

Royal Decree no. 1404 of 1934, which subsequently became Law no. 835 of 1935, established the minors courts. This law has since been amended on several occasions.

Under section 2, all minors courts are made up of an appeal court judge, a judge of first-instance and two lay judges. The latter are chosen from specialists in biology, psychiatry, criminal anthropology, pedagogy or psychology.

The Court of Cassation (Section I, judgment no. 24001 of 26 September 2014) ruled in a civil case concerning two Italian nationals who had travelled to Ukraine to have a child with the help of a surrogate mother. The Court of Cassation held that the decision to take the child into care was lawful. Having noted the absence of genetic links between the child and the intended parents, the Court of Cassation concluded that the impugned situation was illegal under Ukrainian law, since the latter required a biological link with one of the intended parents. The Court of Cassation reiterated that the prohibition on surrogate motherhood was still in force in Italy. It explained that the prohibition on surrogate motherhood in Italian law was a criminal-law one, and was intended to protect the surrogate mother's human dignity and the practice of adoption. It added that only a legally recognised adoption, organised in accordance with the regulations, would allow non-genetic parenthood to be validated. It stated that the assessment of the child's best interests had been carried out in advance by the legislature, and the court had no discretion in this matter. It concluded that there could be no conflict of interest with the child's interests where the court applied the domestic law and refused to take into account a legal parent-child relationship established abroad following a gestational surrogacy arrangement.

The Court of Cassation (Section V, judgment no. 13525 of 5 April 2016) ruled in criminal proceedings against two Italian nationals who had travelled to Ukraine in order to conceive a child and had used an ova donor and a surrogate mother. Ukrainian law required that one of the two parents be the biological parent. The acquittal judgment delivered at first instance had been challenged by the public prosecutor before the Court of Cassation. That court dismissed the public prosecutor's appeal on points of law, thus confirming the acquittal, which had been based on the finding that the defendants had not been in breach of section 12 § 6 of Law no. 40 of 19 February 2004 (the Medically Assisted Reproduction Act), given that they had had recourse to an assisted reproduction technique which was legal in the country in which it was practised. In addition, the Court of Cassation considered that the fact that the defendants had submitted a foreign birth certificate to the Italian authorities did not constitute the offence of ‘making a false statement as to identity’ (Article 495 of the Criminal Code) or ‘falsifying civil status’ (Article 567 of the Criminal Code), since the certificate in question was legal under the law of the issuing country.

The Court of Cassation (Section I, judgment no. 12962/14 of 22 June 2016) ruled in a civil case in which the claimant had asked to be able to adopt her companion's child. The two women had travelled to Spain to use assisted reproduction techniques that were forbidden in Italy. One of them was the ‘mother’ under Italian law, and the seminal fluid had been provided by an unknown donor. The claimant had been successful at first and second instance. On an appeal by the public prosecutor, the Court of Cassation dismissed the latter's submissions, and thus accepted that a child born through assisted reproduction techniques within a same-sex female couple could be adopted by the woman who had not given birth to that child. In reaching that conclusion the Court of Cassation took into account the stable emotional bond between the claimant and the child, and the best interests of the minor child. The Court of Cassation referred to section 44 of the Adoption Act, which provides for special circumstances.

The Government raised two preliminary objections.

First, they alleged that the applicants had not exhausted domestic remedies in that they had not challenged the decision by the Minors Court of 5 June 2013 denying them standing to take part in the adoption proceedings. The Government argued that the remedies available under Italian law were effective.

Secondly, the Government asked the Court to dismiss the application as incompatible ratione personae, on the ground that the applicants did not have locus standi before the Court.

The applicants pointed out that the Chamber had already ruled on these objections and had dismissed them. With particular regard to the objection that they had failed to exhaust domestic remedies in relation to the decision of 5 June 2013 denying them standing to take part in the adoption proceedings, the applicants stressed that when the Minors Court excluded them from the proceedings, more than twenty months had elapsed since the day that the child had been removed. The applicants considered that the passage of time had made the child's return perfectly illusory, given that he now lived with another family. They further noted that the Government had not provided any judicial precedent in support of their argument.

The applicants stated at the outset that the Court was required to rule solely on the disputed measures taken by the Italian authorities in respect of the child, and then only on the basis of Article 8 of the Convention, for the purpose of determining whether there had been a violation of the applicants' private and family life. In their view, given the Chamber's decision to declare inadmissible the complaint concerning the refusal to register the child's Russian birth certificate in Italy, the Court was not required to rule on whether a State's decisions to authorise or prohibit the practice of gestational surrogacy on its territory, or the conditions for recognition of a parent-child relationship in respect of children legally conceived in another country, were compatible with the Convention.

The applicants argued that the ties which bound them to the child amounted to family life, coming within the scope of Article 8 of the Convention. They referred to the Court's case-law in this regard.

They submitted that the family life created between them and the child born to a surrogate mother was in accordance with Russian law as applicable at the relevant time. It was therefore based on a legal tie of lawful parenthood, attested by the birth certificate issued by the competent authorities. The lawfulness of this legal parent-child tie was not affected by the fact that it had transpired that there was no biological father-child relationship binding the intended father and the child, since the presence of such a biological tie had not been required by Russian law at the time.

In the applicants' view, the parental authority exercised by them in respect of the child — and, in consequence, the existence of a legal parent-child relationship — had been recognised by the Italian authorities, in that those authorities had suspended and revoked it.

The child had been born as the result of a serious and duly considered parental project. The couple had demonstrated their attachment to the child even before his birth (the applicants referred to Anayo v. Germany, no. 20578/07, § 61, 21 December 2010) and had taken steps to make an effective family life possible. The applicants stated that, following the child's birth, the first applicant had rapidly taken him into her care and had taken up residence with him in a flat in Moscow, forming strong emotional bonds. On his arrival in Italy, the child lived with the applicants in an environment which, both materially and emotionally, was welcoming, secure and conducive to his harmonious development. The applicants pointed out that the family had lived together for eight months, including six months in Italy. Although this period was relatively short, it corresponded to the first important stages in the child's young life. The applicants also pointed out that the shortness of the period in question had not resulted from any decision on their part, given that the abrupt termination of their cohabitation arose solely from the measures taken by the Italian authorities.

The applicants added that the absence of a biological link could not suffice to preclude the existence of a family life. Furthermore, they stated that they had been convinced that there existed a biological link between the second applicant and the child and that there was no reason to doubt their good faith. In any event, the clinic's error entailed no legal consequences with regard to the lawfulness of the parent-child relationship established in Russia since, at the relevant time, Russian law did not require that intended parents provide their own genetic material. Accordingly, under the applicable rules at the time, the gestational surrogacy arrangement entered into by the applicants was entirely legal under Russian law. The applicants submitted that it had only been since 1 January 2012, when Federal Law no. 323 FZ of 21 November 2011 entered into force, that intended parents were forbidden from using a gamete provider.

The applicants considered that the measures adopted by the Italian authorities amounted to an interference in their family life. In their opinion, that interference had a formal basis in law, as the impugned measures had been taken under the provisions of the Italian Adoption Act. However, these measures resulted from an arbitrary analysis by the domestic courts, in so far as they had concluded that the child had been ‘in a state of abandonment’. The applicants also submitted that although the practice of gestational surrogacy was prohibited by the Medically Assisted Reproduction Act (sections 6 and 14), criminal proceedings had nonetheless never been taken against surrogate mothers or intended parents. In the absence of an extraterritoriality clause, gestational surrogacy arrangements entered into legally in another State could not, in their view, be prosecuted in the Italian courts. Given that it was impossible to prosecute gestational surrogacy as such, other provisions were used as the basis for criminal proceedings. This was the case for the applicants, who had faced prosecution since 5 May 2011 for falsifying civil status (Article 567 of the Criminal Code), use of falsified documents (Article 489 of the Criminal Code) and breach of the provisions of the Adoption Act.

The applicants contested the argument that the legitimate aim of the measures in question had been to protect the rights and freedoms of the child. The Italian courts had based their decisions exclusively on the illegality of the situation created by the applicants and had confined themselves to asserting — with no regard to the Russian legislation — that the surrogacy arrangement in Russia had been contrary to Italian law. Thus, the primary aim of the Minors Court had been to prevent the continuation of the illegal situation. The applicants considered that the decisions of that court indicated solely a wish to punish them for their conduct. The child's interests were mentioned merely to assert that the impact of the impugned measures on him would be minimal.

As to the necessity of those measures, the applicants noted that although recourse to a surrogacy arrangement raised sensitive ethical questions, that consideration was not a valid ground for a ‘carte blanche justifying any measure’. Although the States enjoyed a wide margin of appreciation in authorising or prohibiting the practice of gestational surrogacy arrangements on their territory, they considered that this was not the subject of the present application. The Court was required in the present case to determine whether the measures resulting in the child's irreversible removal had struck a fair balance between the interests at stake, namely those of the applicants, those of the child, and those of public order. From that standpoint, the applicants considered it appropriate to bear in mind that in all decisions concerning a child, his or her best interests ought to be the primary consideration. Thus, the immediate and irremediable severing of family ties had been held to be consistent with Article 8 only in circumstances where the children concerned were exposed to serious and sustained risks to their health and wellbeing. However, that had not been the situation here, according to the applicants, who submitted that the child's best interests had not been taken into consideration by the national authorities at any point.

The applicants argued that their interests and those of the child had converged on the date that the impugned measures were implemented. These measures had destroyed the family unit's existence and had led to an irreversible severing of family ties, with irremediable consequences, in the absence of circumstances justifying that outcome. The Minors Court had refrained from examining the actual conditions of the child's life, and had presumed that he was deprived of emotional or material support from the parents. In the applicants' view, the domestic courts had expressed doubt as to their emotional and educative capabilities solely on the basis of the unlawfulness of their conduct, and had held that they had resorted to a gestational surrogacy arrangement on account of their narcissism. The applicants pointed out, however, that they had previously been assessed as fit to become adoptive parents by those same authorities. Moreover, the social workers, acting on an instruction by the Minors Court, had drawn up a report that was highly favourable to continuation of joint life with the child. There had been clear inadequacies in the decision-making process which led to the contested measures. Thus, the applicants considered that they had been held to be incapable of bringing up and loving the child solely on the basis of presumptions and inferences, without any expert report having been ordered by the courts.

The applicants also pointed out that the authorities had not considered possible alternatives to taking the child into care on an irreversible basis.

They explained that on 20 October 2011 social-services employees arrived at the home of the applicants, who had not been informed of the court's decision, and had taken away the child. This operation had given rise to fear and distress. Thus, even at the point of executing the measures, the authorities' actions had been disproportionate.

Lastly, the applicants emphasised that the Italian authorities had taken no steps to preserve the relationship between them and the child with a view to maintaining the possibility of rebuilding the family; on the contrary, they had forbidden any contact with the child and had placed him in an unknown location. For the applicants, the impact of those measures had been irremediable.

The applicants asked the Court to hold that there had been a violation of Article 8 of the Convention. While aware that a long period of time had elapsed since the child was taken into care, and that it was in the child's interest not to be subjected to a further change in his family situation, the applicants considered that the award of a sum by way of just satisfaction would not be sufficient. They sought to resume contact with the child.

The Government submitted that the Chamber had interpreted Article 8 § 1 of the Convention too broadly, and Article 8 § 2 too restrictively.

Referring to paragraph 69 of the Chamber judgment, in which the Chamber had concluded that a de facto family life existed between the applicants and the child, the Government considered that the Chamber's assertion would have been valid if the tie between the applicants and the child had been a genuine biological one (even if only on the father's side) established by a legally valid birth certificate, and above all if the duration of cohabitation were sufficient to establish the existence of a genuine family life shared by parents and child and the real exercise of parental responsibility. The Government noted, however, that neither of the applicants had a biological link to the child. They concluded that family life had never begun in the present case.

The impugned birth certificate also contravened public order in that it referred to the parents as the ‘biological parents’ which, according to the Government, was untrue. The Government also disagreed with the applicants' argument that the birth certificate issued by the Russian authorities had been in accordance with Russian law. They explained that Russian legislation specifically required the existence of a biological tie between the child and at least one of the intended parents. Indeed, this point had been taken into consideration by the Campobasso Court of Appeal when it decided not to authorise registration of the birth certificate (judgment of 3 April 2013).

The Government further submitted that in 2011 the applicants no longer met the age criteria that would have enabled them to adopt the child in question. They added that de facto family life could not be founded on an unlawful situation such as that brought about by the applicants, who could have adopted a child, given that they had obtained the relevant authorisation to adopt in 2006. The applicants could have chosen not to break the law.

Moreover, the Government pointed out that, under the Court's case-law, Article 8 did not guarantee either the right to found a family or the right to adopt.

The Government accused the applicants of having taken the responsibility of bringing to Italy a child who was completely unrelated to them, in breach of the relevant legislation. Their actions had been deliberate, and the fact that they had entered into a contract to purchase a newborn baby had compromised their position from the outset. The Government could not envisage any measure which could render this situation lawful.

Furthermore, the Government argued that the State enjoyed a wide margin of appreciation with regard to surrogate motherhood and assisted reproduction techniques. The transportation of the second applicant's seminal fluid was in breach of the Medically Assisted Reproduction Act and Legislative Decree no. 191/2007 implementing Directive 2004/23/EC on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. In addition, having regard to the fact that the child had no biological ties to the applicants, the Government expressed doubts as to the validity of the consent given by the surrogate mother and to the lawfulness of the protocol followed in Russia.

Part of the Government's observations focused on the issue of non-recognition of the foreign birth certificate (a complaint declared inadmissible by the Chamber); they pointed out that, under the Italian Civil Code, the only possible biological mother was the woman who had given birth to the child, which was not the case here.

As to the measures to remove the child on a permanent basis, the Government submitted that these had had a legal basis and agreed with the Chamber that they corresponded to a legitimate aim.

As to their necessity, the Government emphasised that Italian law recognised a parent-child relationship only in the event of a biological tie or an adoption which complied with the safeguards set out in the Adoption Act. They argued that it was through this legislative, political and ethical choice that the Italian State had decided to protect the interests of minors and to satisfy the requirements of Article 3 of the UN Convention on the Rights of the Child. This choice afforded no discretion to the courts.

In the Government's view, the measures taken by the domestic courts were based on a careful assessment of the situation. The Government pointed out that the minors courts, which reached their decisions on a collegial basis, were composed of two professional judges and two lay judges who had specific training in psychiatry, biology, criminal anthropology, pedagogy or psychology. In the present case, the Campobasso Court had taken into account the child's psychosocial profile in assessing his interests, and expressed doubts as to the applicants' abilities to love and educate the child.

The Government stressed that the impugned measures had been taken to ensure that the child could enjoy a private and family life in another family that was capable of protecting his health and providing for his sound and safe development and a definite identity. The Italian authorities had sought to strike a balance between competing interests, including those of the child, whose best interests were treated as the primary consideration. In the Government's view, they had complied with the national legislation, in line with the margin of appreciation afforded to them in this area, and had reacted to the conduct of the applicants, who had breached the law on assisted reproduction.

The Government observed that the Court of Cassation had reached the same conclusion with regard to similar measures taken by the authorities in a comparable case, where the child had been born in Ukraine (see paragraph 70 above). The Government asked the Court to respect the principle of subsidiarity and the margin of appreciation left to the States and not to substitute its assessment for that of the national authorities.

In view of these considerations, the Government submitted that the application raised no issues under Article 8 of the Convention.

Lastly, the Government turned in the final section of their observations to gestational surrogacy and the Medically Assisted Reproduction Act, which prohibits this practice. They emphasised that the applicants had had recourse to an ethically unacceptable commercial practice in respect of which no European consensus existed. The Government criticised the Chamber judgment on the ground that it did not contain a chapter on comparative European law on gestational surrogacy arrangements. In view of the absence of a common standard, and the fact that certain States allowed the practice of surrogate motherhood, the Government condemned the growth of ‘reproductive tourism’ and noted that the legal issues in this area were thorny ones, given the lack of harmonisation in the States' legal systems. They considered that, in the light of the lack of consensus in the States' domestic laws, and an absence of international regulations, the Court ought to allow the States a wide margin of appreciation in this area.

The Court notes at the outset that the child T.C. was born from an embryo obtained from an ova donation and a sperm donation provided by unknown donors, and was brought into the world in Russia by a Russian woman who waived her rights to him. There was therefore no biological tie between the applicants and the child. The applicants paid approximately EUR 50,000 to receive the child. The Russian authorities issued a birth certificate stating that they were the parents under Russian law. The applicants then decided to bring the child to Italy and to live there with him. The child's genetic origins remain unknown. The present case thus concerns applicants who, acting outside any standard adoption procedure, brought to Italy from abroad a child who had no biological tie with either parent, and who had been conceived — according to the domestic courts — through assisted reproduction techniques that were unlawful under Italian law.

The Court notes that in the cases of Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)) and Labassee v. France (no. 65941/11, 26 June 2014), two pairs of intended parents had resorted to gestational surrogacy in the United States and had settled with their children in France. In those cases the existence of a biological tie between the father and the children was proven and the French authorities had never envisaged separating the children from the parents. The issue at the heart of those cases was the refusal to register the particulars of a birth certificate drawn up abroad in undisputed compliance with the legislation of the country of origin, and the children's right to obtain recognition of the legal parent-child relationship. The parents and children were all applicants before the Court.

Unlike the above-cited Mennesson and Labassee cases, the present Article 8 complaint does not concern the registration of a foreign birth certificate and recognition of the legal parent-child relationship in respect of a child born from a gestational surrogacy arrangement (see paragraph 84 above). What is at issue in the present case are the measures taken by the Italian authorities which resulted in the separation, on a permanent basis, of the child and the applicants. Indeed, the domestic courts stated that the case did not involve a ‘traditional’ surrogacy arrangement, given that the applicants' biological material had not been used. They emphasised the failure to comply with the procedure laid down by the legislation on international adoption and the breach of the prohibition on using donated gametes within the meaning of section 4 of the Medically Assisted Reproduction Act (see the relevant passage of the decision by the Minors Court, paragraph 37 above).

Therefore the legal questions at the heart of the case are: whether, given the circumstances outlined above, Article 8 is applicable; in the affirmative, whether the urgent measures ordered by the Minors Court, which resulted in the child's removal, amount to an interference in the applicants' right to respect for their family life and/or their private life within the meaning of Article 8 § 1 of the Convention and, if so, whether the impugned measures were taken in accordance with Article 8 § 2 of the Convention.

Lastly, the Court points out that the child T.C. is not an applicant in the proceedings before the Court, the Chamber having dismissed the complaints raised by the applicants on his behalf (see paragraph 86 above). The Court is called upon to examine solely the complaints raised by the applicants on their own behalf (see, a contrario, Mennesson, cited above, §§ 96–102, and Labassee, cited above, §§ 75–81).

The Court reiterates that the Chamber concluded that there existed a de facto family life between the applicants and the child (see § 69 of the Chamber judgment). It further considered that the situation complained of also related to the second applicant's private life, in that what was at stake for him was the establishment of a biological tie with the child (see § 70 of the Chamber judgment). It followed that Article 8 of the Convention was applicable in the present case.

The Government challenged the existence of a family life in the present case, relying essentially on the absence of a biological link between the applicants and the child and on the illegality of the applicants' conduct under Italian law. They submitted that, in view of the applicants' unlawful conduct, no tie protected by Article 8 of the Convention could exist between them and the child. They also argued that the applicants had lived with the child for only eight months.

The applicants asked the Court to recognise the existence of a family life, in spite of the lack of a biological tie with the child and the non-recognition of a parent-child relationship under Italian law. Essentially, they argued that a legal parental relationship was recognised in Russian law and that they had formed close emotional ties with the child during the first eight months of his life.

The Court must therefore reply to the question whether the facts in the present case fall within the applicants' family life and/or private life.

The applicants in the present case were affected by the judicial decisions which resulted in the child's removal and his being placed in the care of the social services with a view to adoption. The Court considers that the measures taken in respect of the child — removal, placement in a home without contact with the applicants, being placed under guardianship — amounted to an interference with the applicants' private life.

Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being ‘in accordance with the law’, pursuing one or more of the legitimate aims listed therein, and being ‘necessary in a democratic society’ in order to achieve the aim or aims concerned.