International Conference 29 Sep 2017

1. The lack of judicial and legislative coordination
for gestational surrogacy cases in Europe

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E.U. countries where surrogacy is not legal
SPAIN. art. 10 Ley/ 2006. The contract of gestacional surrogacy is null and void. The father has right to recognize the
genetic fatherhood. Verdict n. 6 of February 2014 (and sentence of February 2nd 2015) by the Spanish supreme Court
(Tribunal Supremo): establish the ways for the children's legalization.
ITALY. Art. 12 Legge/40. The contract of gestacional surrogacy is null and void. Moreover the realization, promotion and
organization of surrogacy is prohibited and punished (crime law). Intended parents can refer to attorneys at law for legal
advice. Foreign clinics and agencies can organize and promote surrogacy only from their own countries (internet).
Criminal Supreme Court: no crime of falsification of civil status. Civil Supreme Court: gestational surrogacy is contrary to
internal public order. Recent judgements: all Italian courts recognise the right of the babies to be part of their de facto
families. Some historical judgements occurred like the one recognizing the fatherhood of a homosexual couple.
FRANCE. The contract of gestacional surrogacy is null and void. Moreover the promotion and organization of surrogacy
is prohibited and punished (crime law). The government opened (2013) to grant the French nationality to the babies
(proved to be children of a French citizen). Administrative obstructionism. Fathers shall always go to trial.
GERMANY. ESchG law on the embryos protection prohibits surrogacy (crime). the contract is null and void.
The Supreme courts has recognized the fatherhood of a gay couple (US judgement). Genetic children are recognized as
German.
MATER SEMPER CERTA EST

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E.U. countries where surrogacy is legal
GREECE. Altruistic surrogacy is legal. Women must prove impossibility to carry a baby .Women up to 50 y.o.,
singles accepted (only women), no need of genetic material. Court judgement to establish the parenthood.
PORTUGAL. Altruistic surrogacy is legal. Women must prove impossibility to carry a baby. Previous
authorization by governmental authority. Genetic relationship mandatory. Possible for foreigners (?)
ENGLAND. Altruisitc surrogacy is legal. Only permanent residents in the UK. Only couples (married or not).
Genetic relationship mandatory. Parental order (judgement).
INTENDED PARENTHOOD RECOGNIZED

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Menesson - Labasse v. France: the ECHR condemns France for the violation of art.8 EConvHR (right to
familiar and private life)and to recognize the parenthood of the intended parents. Presence of genetic relation.
Paradiso - Campanelli v. Italy: ECHR confirms the previos decisions even in absence of genetic realtion. The
sense is still the protection of the minor’s superior interst (de facto family). The intended parents are the legal
parents in the birth country.
Paradiso Campanelli at Grande Chambre: The Court considers that Italian authorities’ actions were correct.
Based on two considerations. First of all the behaviour of the intended parents seriously violated the Italian laws,
as they counterfeited the birth certificate and declared the false regarding the shipment of the man’s gametes and
the genetic relation. Second: the GC asserts that the time the baby spent with his entended parents was too short
in order to produce significant effects regarding the protection of the familiar and private life of the children.
Moreover (due to the i.p. behaviour) legal uncertainty played a role as well. This judgement indirectly confirms the
right of the family and private life and the de facto family as decisive factors.
CONCLUSIONS: No harmonization among the European countries on the subject of Gestational Surrogacy.
General negative approach. The jurisprudence of the ECHR defends the superior interest of the child and the de
facto family, but time and legal behavior are important factors. Genetic relation is advisable. Legal counsel is very
advisable! :)
Jurisprudence of the European Court of Human Rights

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