In a ruling on Tuesday, the court held that Italy violated the right of the married couple to recognize the child as their own, despite there being no biological tie.
Donatina Paradiso and Giovanni Campanelli, from Colletorto in Molise, turned to Rosjurconsulting, a Russian law firm specializing in reproductive law and surrogacy, after several failed attempts to conceive through IVF, the court said in its judgement.
The baby boy was born in Moscow in February 2011 to a surrogate mother via IVF.
The couple were registered as the baby’s parents, in accordance with Russian law, but without any indication that the child was born through surrogacy.
They were later provided with documents from the Italian Consulate in Moscow allowing the child to leave for Italy.
But when they attempted to register the birth in Colletorto, they were accused of fraud after the Italian Consulate informed authorities that information provided on the child’s birth certificate was incorrect.
A DNA test later that year revealed that Campanelli was not the child’s biological father. The couple claimed they were unaware that Campanelli’s semen had not been used in the Russian clinic.
Under Italian law, the person who gives birth to a baby is legally its mother, and the use of surrogate mothers is illegal.
In October 2011, Campobasso minors court ruled that the child be removed immediately from the couple and placed under guardianship, on the grounds there was “no biological relationship between them” and because there were doubts over the couple’s ability to raise a child.
The baby was placed in a children’s home, without Paradiso and Campanelli being informed of its location or allowed any contact, and in January 2013 it was entrusted to foster parents.
The child’s biological mother could not be traced.
In its ruling, the ECHR said the Italian state had violated Article 8 of the European Convention on Human Rights enshrining the right to respect for private and family life.
Although Paradiso and Campanelli, aged 48 and 60, respectively, had spent only six months with the baby, the court considered the period to have “covered important stages in his young life and they had behaved as parents towards him during that period”.
The court ordered the Italian state to pay the applicants €20,000 in respect of non-pecuniary damage and €10,000 for costs and expenses.
However, the state is not obliged to return the child as he would have "developed emotional ties with his foster family", the court said.