|Surrogacy refers to the practice in which a woman is contractually obliged to carry on a pregnancy on behalf of the so-called intended parents or clients. An embryo created artificially by insemination or in vitro fertilization related to an oocyte coming from an anonymous donor (or from the surrogate mother or from the client mother) and the sperm of the intended father (or from an anonymous donor) is thus implanted in her uterus. A distinction is made between traditional surrogacy and gestational surrogacy according to whether the oocyte fertilized with sperm from the client father (or from a male gamete donor) belongs respectively to the surrogate mother or to an anonymous donor (or more rarely to the intended mother). The surrogate mother also undertakes to renounce any rights to the child at the time of birth: the new-born is immediately entrusted to the intended parents and the legal parenting relationship is then established in favour of both or the intended and non-biological parent only, based on the local applicable law, according to different legal methods (such as, for example, the issue of a birth certificate or the issuance of a post-partum judicial provision certifying the co-parenting of the client couple on the child). The surrogate mother can act free of charge (receiving only a reimbursement for medical expenses incurred in, so-called altruistic surrogacy) or in return for payment (receiving compensation, so-called commercial surrogacy). Due to the risks of exploitation of the surrogate mother and the dangers associated with the trafficking of minors, this procreative technique is the core issue of heated ethical-juridical debates. It is disciplined in various ways at the domestic level: in some legal orders it is allowed, in others it is forbidden, in still others it is merely tolerated, without being regulated in any way. The Italian law prohibits and punish under criminal law any resort to surrogacy (Art. 12, para. 6, Law No 40/2004 laying down rules on medically assisted procreation techniques). The huge regulatory divergences existing at the domestic level relating to the admissibility and discipline of surrogacy, in addition to the absence of uniform rules at the international level, push more and more couples and individuals to go abroad in order to carry out their parental project there, when the latter is prohibited or even more strictly disciplined in the country of origin (so-called “procreative tourism“). From a private international law perspective, surrogacy is relevant with respect to the application for recognition of the status filiationis of the child born abroad as a result of surrogacy carried out in the State of origin of the intended parents, when in the requested State this practice is prohibited or disciplined with stricter requirements than the rules applied in the country of birth. This issue may bring into play different private international law rules depending on whether the status of a child is provided for in foreign rules of an administrative nature (foreign birth certificate) and/or judicial one (judicial measure by which the co-legal parenthood to both intended parents is conferred to, regardless of the biological link of the latter with the child: e.g. parental order in the UK). The case law of the European Court of Human Rights dealt with this point on several occasions since 2014. It is settled the law principle set out in the “twin” cases Mennesson v. France and Labassee v. France (2014), where the Court stated the violation of the right to personal identity (Art. 8 of the ECHR) of children born abroad as a result of surrogacy in relation to the refusal by the French authorities to transcribe the birth certificates of the latter where one of the intended parents (the father) is also the biological parent of the children involved. This principle, stated with respect to a French citizens couple, heterosexual and legally married in France, was then applied also in other cases (Foulon and Bouvet v. France; Laborie v. France). More recently, in the first advisory opinion delivered by the Grand Chamber of the Strasbourg Court on 10 April 2019 pursuant to Protocol 16 annexed to the ECHR, the Court dealt with the conventional protection of the application for recognition of legal parental responsibility in favour of the intended and non-biological mother. The Grand Chamber stated that the Contracting States are required to offer the possibility of a purely intended recognition of the parental status, in a manner determined at the discretion of the relevant legal order, as long as they comply with the timeliness and effectiveness requirements. This principle of law, which is not binding on either the requesting State or the States that have ratified the Protocol, was subsequently applied by the Strasbourg Court in two recent rulings, again against France. Finally, it should be noted that in the Paradiso and Campanelli v. Italy case (2015), the Court, for purely procedural reasons (the failure to exhaust domestic remedies), did not rule on the compatibility issue with the Convention of the denial of recognition by the Italian authorities with respect to a child born in Russia from surrogacy and “double heterologous”, i.e. non-biologically linked to either of the two intended parents (heterosexual and married Italian couple). After some more recent rulings on the recognition in Italy of the foreign filiation relationship deriving from surrogacy, the Italian case law on this issue seems to have developed two different trends. On the one hand, by virtue of the protection obligations arising out of Art. 8 of the ECHR deriving from Mennesson v. France and Labassee v. France, the Italian legal order recognizes the parental relationship with respect to the biological parent only (i.e. the male partner of a heterosexual or homosexual couple). On the other hand, it denies, because of the contrast with public policy, the recognition of parental status with the intended-non-biological parent (i.e. the male or female partner of a homosexual or heterosexual couple), imposing, alternatively, on the intended parent the possibility of getting back the parental status in Italy by applying before the Italian courts for adoption in particular cases pursuant to Art. 44, lett. d, of the Law No 184/1983 (Italian Court of Cassation, Civil Joint Divisions, judgement of 8 May 2019, n. 12193). This position still remains unchanged despite the issues of constitutional legitimacy brought before the Italian Constitutional Court via the order of the Italian Court of Cassation of 29 April 2020. The Constitutional Court indeed ruled the judgement No 33/2021 where stated the issues raised unfounded, at the same time inviting the Italian legislator to rule on the matter as soon as possible.
The recognition issue (in the State of origin of the intended parents) of the status filiationis coming from abroad as a result of surrogacy is connected to the variety of domestic legislation on admissibility and on the requirements needed to resort to this practice: in some legal orders it is allowed (surrogacy-friendly jurisdictions), in others it is prohibited (sometimes even criminally: ex. in Italy, Art. 12, para. 6, Law No 40/2004), in still others it is merely tolerated, without being disciplined.
In the European context, the functioning of the various private international law rules relevant for the purpose of recognizing the foreign status referred to above is also tied to compliance with the respect of obligations arising out of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in relation, in particular, to the right to respect for private and family life (Art. 8 of the ECHR), whose protection has been considered essential for the purpose of safeguarding the cross-border continuity of the child’s status.
The case law of the European Court of Human Rights
– The Strasbourg Court, in the twin judgements Mennesson and Labassee v. France in 2014 stated the obligation for the contracting States to recognize the status of a child legitimately born abroad as a result of surrogacy in accordance with the right to respect for private life provided for under Art. 8 of the ECHR (but not also in accordance with the right to respect for family life), given that this prerogative implies the right of each individual to determine the details of his or her identity as a human being, including the filiation relationship. While recognizing a wide discretionary margin of appreciation to each State on the gestational surrogacy issue, the Court stated the aforementioned margin was exceeded in the lack of recognition of the parental relationship between the born and the intended father when the latter is also the biological father.
– The Court deal with again the Mennesson/Labassee principle in the following Laborie v. France case (2017) as well as out of the context of a heterosexual marriage, stating the recognition of a parental relationship related to India as a result of surrogacy (only) in favour of the biological father, a French citizen. Foreign birth certificates indicated the Indian surrogate mother as the legal mother of the children (2018, Foulon and Bouvet v. France).
– In the Paradiso and Campanelli v. Italy case, the Court dealt with the compatibility issue with the ECHR of the refusal by the Italian authorities with reference to the civil status registration of the foreign birth certificate of a child born in Moscow as a result of gestational (commercial) surrogacy, on the ground that it was contrary to the Italian public policy, and the related removal of the child from the intended parents (with the declaration of the child’s adoptability). In that case, the intended parents, heterosexual Italian citizens married in Italy, were not biologically linked to the child, the latter having been conceived in Russia by means of “double heterologous” fertilisation, that is, using male and female gametes from anonymous donors. The couple initially simulated a natural filiation in their return to Italy in order to obtain the child’s documents and the registration of the foreign birth certificate. Not being able to rule upon the application concerning the recognisability of the filiation relationship in Italy because of strictly procedural reasons, the European Court of Human Rights then ruled on the second complaint raised. In a first judgement ruled by the Second Chamber of the Court (judgment of 27 January 2015), it stated that the measure of removing the child from his or her parents was in violation of Art. 8 ECHR (the right to respect for the child’s private life). Subsequently, in a ruling by the Grand Chamber (judgment of 24 January 2017), emphasizing the short duration of the child’s stay with the intended parents, it excluded the violation of the aforementioned conventional obligation, considering that the Italian authorities had correctly balanced the interests at stake.
– More recently, the advisory opinion by the Grand Chamber of the European Court of Human Rights, delivered for the first time on the basis of Protocol No 16 annexed to the ECHR, dealt with this matter (opinion of 10 April 2019). The issue was raised by the French Cour de Cassation in relation to the Mennesson case, with reference to the recognisability of the filiationis status established abroad with respect to the intended and non-biological mother. The Grand Chamber stated that the child’s right to respect for his or her private life requires, on the one hand, that domestic legislation allow for the possibility (not a general obligation) of recognising a parent-child relationship with the intended mother, but, on the other hand, does not require that such recognition necessarily take the form of transcription in the civil-status register of the birth certificate issued abroad (as is the case, instead, for the intended biological father). Art. 8 ECHR requires that, in the best interests of the child, to be assessed in practice, recognition of the link lawfully established abroad has to be guaranteed at least when it has become a “practical reality” (para. 52). In such a case, the relationship with the intended mother may be established separately, via the application for the child adoption; however, the procedure provided for by domestic law shall be able to be implemented promptly and effectively. The advisory opinion rendered by the ECHR at the request of the French Court of Cassation is not binding, as expressly stated under Art. 5 of Protocol No 16 to the ECHR: neither for the requesting State, nor a fortiori for other States, especially those – like Italy – that have not ratified the Protocol at stake. This opinion has been upheld in subsequent judgments issued in litigation cases before the European Court of Human Rights (judgment of 16 July 2020, D. v. France; decision of 19 November 2019, C. v. France and E. v. France).
The Italian case law
– The judgment by the Bari Court of Appeal of 13 February 2009 (App. Bari, 13 February 2009), for the first time dealt with the recognition issue in Italy of a filiationis status established abroad as a result of surrogacy. It imposed the recognition of the parental relationship of two children born in the United Kingdom in favour of the Italian intended mother, clarifying that, for the purposes of declaring the effectiveness in Italy of “parental orders” issued in the United Kingdom, today’s legislative prohibition (not applicable, ratione temporis, when the children at stake were born) of surrogacy and the principle of the prevalence of “biological” over “social” motherhood are not, in re ipsa, indications of a breach of public policy. Moreover, the best interests of the child must be paramount (Art. 3 of the Convention on the Rights of the Child).
– There have been numerous rulings on the status of children born abroad as a result of surrogacy agreements entered into by Italian citizens.
– In the Supreme Court of Cassation judgment No 24001/2014, the Court confirmed the adoptability status of a child born in Ukraine from a surrogate mother and not biologically linked to either of the intended parents (a married heterosexual couple with Italian citizenship) and denied the recognition in Italy of the status filiationis on the grounds that it was contrary to public policy (para. 3.1: “The prohibition of surrogacy practices is certainly a matter of public policy, as suggested by the provision of criminal sanctions provided for as a rule to protect fundamental rights. It comes into play the human dignity – constitutionally protected – of the pregnant woman and the adoption, the surrogacy is objectively in conflict with, because only to this legal instrument, governed by special rules designed to protect all those concerned, first and foremost the children, and not to the mere parties agreement, the legal order entrusts the implementation of parenting projects without biological ties to the child“).
– The Italian Constitutional Court has stressed out that the surrogacy practice “intolerably offends the dignity of women and deeply undermines human relations” (judgment No 272 of 2017).
– More recently, the trend in case-law appears to be twofold. On the one hand, on the recognition of the status of child with respect to the biological parent, the practice has adapted to the protection directives imposed by the Strasbourg Court mentioned above. On the other, there is still a closed attitude towards the recognition of the parental relationship with respect to the intended non-biological parent for reasons of public policy linked to the disvalue afforded by our legal system to surrogacy.
– Indeed, in judgment No 12193/2019, the Court of Cassation, Civil Joint Divisions, denied recognition, on the grounds of conflict with public policy, of the Canadian jurisdictional order recognizing co-parenting rights to two children born in Canada as a result of gestational surrogacy in favour of the intended non-biological parent. According to the United Sections, the prohibition of surrogacy laid down by Law No 40/2004 must be considered as a principle of public policy, since it protects fundamental values such as the human dignity of the pregnant woman, which is constitutionally protected, and the adoption, guaranteed by law (No 184/1983), which is currently the only suitable instrument in Italy for establishing a filial relationship in situations where there is no biological link between the child concerned and the parents. The protection of such values, which are deemed to prevail over the concrete interests of the children involved, in a balancing carried out directly by the legislator, would not, however, exclude, according to the Supreme Court, the possibility for the non-biological parent to re-establish the intended parental relationship in Italy by resorting to other legal instruments, such as adoption in special cases provided for by Art. 44(1)(d) of Law No 184/1983.
– In order of 29 April 2020, the First Civil Division of the Court of Cassation doubted the compatibility of the legislation in force resulting from the judgment – Joint Civil Divisions – No 12193/2019 with a plurality of constitutional parameters. The Supreme Court thus – with reference to Art. 2, 3, 30, 31 and 117, para. 1, of the Constitution, the latter in relation to Art. 8 of the ECHR, Art. 2, 3, 7, 8, 9 and 18 of the Convention on the Rights of the Child and Adolescent, and Art. 24 of the Charter of Fundamental Rights of the European Union – raised issues on the constitutionality of Art. 12(6) of Law No 40/2004 (Rules on medically assisted procreation), Art. 64(1)(g) of the Italian Law on Private International Law (No 218/1995) and Art. 18 of Presidential Decree No 40/2004 (Rules on medically assisted procreation) and Art. 18 of Presidential Decree No 396 of 3 November 2000 (Regulation for the revision and simplification of the civil status system), “in so far as they do not permit, according to the current interpretation of the legislation in force, the recognition and enforcement of a foreign court order relating to the inclusion in the civil status certificate of a child procreated as a result of surrogacy by a non-biological intended parent“.
– In the judgment No 33/2021, the Italian Constitutional Court stated the above issues inadmissible but at the same time referred to the Italian legislator to intervene in the matter as soon as possible in order to achieve, at the legislative level, the balance required by the various interests at stake (para. 5. 9: “The task of adapting the law in force to the requirements of protection of the interests of children born as a result of surrogacy – in the context of the difficult balancing between the legitimate aim of discouraging resort to this practice and the unavoidable need to ensure respect for the rights of children, in the ways set out above – is up, in the first instance, to the legislature, which it to be recognised having significant room for manoeuvre in identifying a solution that takes into account all the rights and principles at stake. Faced with the range of possible options, all of which are compatible with the Constitution and all of which involve action on matters of great systemic complexity, this Court can only stop and give way to the discretion of the legislator in the imperative task of identifying the solutions capable of remedying the current situation of insufficient protection of the interests of the child.”)
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