A few weeks ago (30 December 2022), the Grand Chamber of the Italian Supreme Court (Corte di Cassazione, Sezioni Unite) delivered its judgment No 38162/2022. The case concerns a child born in Canada through surrogacy. At his birth, the Canadian authorities formed a birth certificate naming only his biological father as parent; the birth certificate was then transcribed in the Italian civil register. In 2017, the Supreme Court of British Columbia declared both the biological parent and the intended parent – two Italian men, married in Canada, and living in Italy – as parents of the child and ordered the rectification of the birth certificate in Canada. Subsequently, the couple asked the Italian registrar to rectify the child’s birth certificate in Italy, based on the Canadian judgment and the Canadian birth certificate. Against the refusal of the Italian registrar to rectify the Italian birth certificate, the couple brought an appeal to the competent Court of Appeal (Corte di Appello di Venezia), which upheld it on the ground that the Canadian judgment (and birth certificate) meet the requirements for recognition under Art. 67 of the Italian Private international Law Act and, among these, they do not produce effects contrary to international public order.
In overturning the decision of the territorial Court, the Supreme Court decided as follow. Since the practice of surrogacy, whatever the manner of conduct and the aims pursued, intolerably offends a woman’s dignity and profoundly undermines human relations, a foreign decision, and a fortiori the original birth certificate, which names as the child’s parent the intended parent who, together with the biological father, has wanted the child to be born through surrogacy in the foreign country, albeit according to the lex loci, cannot be transcribed automatically. Nonetheless, the child born through surrogacy also has a fundamental right to recognition, including legal recognition, of the bond that arose by virtue of the emotional relationship established and experienced with the person who participated in the parental design. The inescapable need to ensure the child born through surrogacy the same rights as other children born under different conditions is guaranteed through a special regime of adoption. At the current state of Italian law, adoption is the instrument that makes possible legal recognition, including the status of child, of the de facto bond with the intended parent who has shared the procreative design and has helped to care for the child from the moment of birth.
The text of the Judgment is available here.
On this very sensitive topic, the readers of RDIPP may refer to:
Elisabetta Bergamini, 2015, No 2, 315 ff.; Olivia Lopes Pegna, 2016, No 3, 725 ff.; Andrea Cannone, 2019, No 1, 5 ff.; Maria Caterina Baruffi, 2020, No 2, 290 ff; Antonietta Di Blase, 2021, No 4, 821 ff.; Chiara Ragni, 2022, No 1, 43 ff.; Michele Grassi, 2022, No 3, 591 ff.