Adoption v. Surrogacy: New Perspectives on the Parental Projects of Same-Sex Couples

Abstract

In Italy all forms of surrogacy are forbidden, whether it be traditional or gestational, commercial or altruistic. Act n. 40 of 19/2/2004, entitled “Rules about medically-assisted reproduction”, introduces a prohibition on employing gametes from donors, and specifically incriminates not only intermediary agencies and clinics practising surrogacy, but also the intended parents and the surrogate mother too. Other penal consequences are provided by the Criminal Code about the registration of a birth certificate where parents are the intended ones, as provided by the lex loci actus (art. 567 of the Italian Criminal Code, concerning the false representation or concealment of status). Apart from the mentioned criminal problems, several aspects of private international law are involved. In the cases where national rules forbid the transcription of birth certificates for public policy reasons, specifically the prohibition of surrogacy, Italian Judges often seek solutions to enforce the status filiationis. In this case, the Italian Supreme Court intervenes in the debate, allowing the recognition of a foreign adoption order related to a procedure of surrogate motherhood in favour of a same-sex couple. Focusing on the recent evolution of the notion of international public policy the Supreme Court affirms that the inherent adoptive parental status acquired by a homogenitorial couple is not contrary to international public policy, when the effects of the act from which this status derives are not incompatible with the limits that cannot be exceeded constituted by the founding principles of the relational choices between intended parents and child (Article 2 of the Constitution, Article 8 ECHR), by the Best interest of the child as codified in the Italian Law 219/2012, by the principle of non-discrimination, by the principle of solidarity that is the basis of social parenting. Splitting the problem of the surrogacy, underlying the adoption order to recognize in this case, and narrowing the public policy exception, is highly evident the risk to suggest to same-sex couples to realize their parental projects putting in place the surrogacy within the legal systems where contemporary it is possible to carry out the adoption of the child born as a result of this procedure.