The eighth section of the Civil Court of Milan annulled, in the part in which it also indicated the intentional parent in addition to the biological one in a same-sex male couple, the transcription of the birth certificate of a child born abroad from gestation for others/ surrogacy prohibited in Italy. However, for the judges, the child will be able to be protected by the instrument of “adoption in particular cases” outlined by the Constitutional Court in 2022.
Three cases of children with two mothers have been postponed
Instead, the Civil Court sent into extra time, not deciding but interlocutoryly indicating a different type of civil proceeding to be celebrated in the future and elsewhere, the fate of three cases of transcription of the child’s recognition deed, already recognized by the pregnant mother, by the intentional mother in female homoparental couples who had resorted to medically assisted procreation techniques abroad.
Translated into practical effect, in the meantime the birth certificates of the children remain transcribed, and the initiation of the other type of civil case will predictably occupy a couple of years: a period of time in which who knows if Parliament will finally collect the pressing invitation of the Constitutional Court in 2022 to give “a more adequate discipline” to these issues.
Change of course after Consultation and Cassation
While the Padua Public Prosecutor’s Office in recent days has requested the cancellation of the transcript of all these birth certificates from the beginning in 2017 to today (33), in Milan the public prosecutor Rossana Guareschi with the prosecutor Marcello Viola had instead asked in recent months (supported by the Ministry of the Interior which via Prefetture had written between January and March to the mayors) the annulment only of those birth certificates (4) transcribed by the Municipality of Milan following the sentence of the United Sections of the Cassation that on December 30, 2022, following the Constitutional Court’s pronouncement of 2021, had very limited room for maneuver. And in fact, precisely in the light of these two rulings, the Milanese civil judges of the “family section” Enrica Alessandra Manfredini, Laura Maria Cosmai and Elisabetta Stefania Stuccillo now write that they believe they are changing their convictions compared to previous decisions. And they embrace the reasons for the non-transcribability of the foreign provision for ascertaining parenthood also against the client without a biological link with the child in homoparental male couples.
«Surrogacy offends the dignity of women»
The main reason is «the legitimate aim of discouraging recourse to the practice of surrogacy, which intolerably offends the dignity of women and deeply undermines human relationships, supporting an unacceptable commodification of the body, often to the detriment of women who are more vulnerable on the economic and social level”. Furthermore, “the automatic recognition of the filiation relationship with the intended parent, on the basis of the surrogacy contract and the acts of foreign authorities that recognize the filiation resulting from the contract, is not functional to the realization of the best interests of the minor, if anything implements that of adults who aspire to have a child at all costs”. And then “it must be excluded that the desire for parenthood, through recourse to medically assisted procreation left to the self-determination of the interested parties, can legitimize an alleged right to parenthood including not only the if and when, but also the way”.
The “adoption in special cases”
What about the good and interest of the child in the meantime? “The legal system – the judges indicate – already knows and protects relationships of filiation not originating from genetics, but arising on the basis of the “choice”, and therefore of the assumption of responsibility, to give life to a common parental project”. That is, the instrument is «adoption in particular cases» (article 44 of law 184 of 1983), expanded in 2022 by the Constitutional Court so that the adoptee has relational and patrimonial protection also towards relatives. This stepchild adoption «represents the institution which allows the child, born following surrogacy within the ambit of a procreative project of a homoaffective couple, to maintain, with the recognition of the status of child, the affective and caring relationship already fact established and consolidated with the partner of the biological parent”; and at the same time “represents the model aimed at consolidating, with a legal capacity, the relationship with the one of the two components of the couple, who is not the biological parent and therefore is not a parent according to the Italian legal system”.
Sons of two women, another kind of civil suit
Instead, in the case of same-parent female couples, the Court declared the procedure of “rectification of the civil status documents” “inadmissible” with which the Public Prosecutor’s Office requested in three cases the annulment of the transcription of the child’s recognition deed, already recognized from the biological mother, from the intended mother’s side. The reason here is purely technical-procedural, i.e. the judges believe that, once the registrar has accepted the act of recognition – «even if out of complacency, by mistake or in violation of the law» – the status of child cannot be removed through a rectification procedure, but only through a cognizance contentious procedure (a civil case that has other locations and guarantees, including the appointment of a special liquidator for the protection of the minor’s interest), a procedure used for challenge the recognition for lack of truthfulness, disavowal of paternity, contestation of status.
Contrary precedents and times
It is not a decision carved in marble, because the same judges of the section presided over by Giovanni Battista Rollero, in illustrating the procedural arguments for which they share a sentence of the Florence Court of Appeal of February 14, 2023, however acknowledge that they are moving away by verdicts contrary to this solution already adopted by the Milan Court of Appeal on 4 July 2022 and by the Cassation on 7 March 2022.
June 23, 2023
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