On 24 January 2017 the Grand Chamber of the European Court of Human Rights issued the final judgment on the case Paradiso and Campanelli v. Italy, concerning the removal of a child born abroad by surrogacy from its intended parents. Differently from the previous judgment of 27 January 2015, the Grand Chamber held that there was no breach of article 8 of the European Convention on Human Rights. Considering that the Court reached such conclusion mainly by denying the existence of a family life, I submit that several shortcomings flow from the relevant reasoning followed by the Court. The consolidation of these weaknesses risks eroding the notion of family life as based on the substance of relationships regardless of biological or legal links as well as of a mere quantitative evaluation. Indeed, the denial of the existence of a de facto family life allowed the Grand Chamber to avoid being faced with the hard balance between the safeguard of the familiar unity and the wide margin of appreciation of States when such an ethical and moral issue is at stake as surrogacy. To the extent that a no breach outcome was to be reached, maybe the Court should have admitted the existence of a family life and applied the margin of appreciation doctrine in order to avoid the adverse impacts of the judgment on the substantial notion of family life as well as future applications regarding surrogacy.

Vita familiare e maternità surrogata nella sentenza definitiva della corte europea dei diritti umani sul caso Paradiso et Campanelli

Gervasi, Mario
2017

Abstract

On 24 January 2017 the Grand Chamber of the European Court of Human Rights issued the final judgment on the case Paradiso and Campanelli v. Italy, concerning the removal of a child born abroad by surrogacy from its intended parents. Differently from the previous judgment of 27 January 2015, the Grand Chamber held that there was no breach of article 8 of the European Convention on Human Rights. Considering that the Court reached such conclusion mainly by denying the existence of a family life, I submit that several shortcomings flow from the relevant reasoning followed by the Court. The consolidation of these weaknesses risks eroding the notion of family life as based on the substance of relationships regardless of biological or legal links as well as of a mere quantitative evaluation. Indeed, the denial of the existence of a de facto family life allowed the Grand Chamber to avoid being faced with the hard balance between the safeguard of the familiar unity and the wide margin of appreciation of States when such an ethical and moral issue is at stake as surrogacy. To the extent that a no breach outcome was to be reached, maybe the Court should have admitted the existence of a family life and applied the margin of appreciation doctrine in order to avoid the adverse impacts of the judgment on the substantial notion of family life as well as future applications regarding surrogacy.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11586/392147
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