5 July 2022

Mayor Beppe Sala's 'gift' to Pride

From now on, in Milan, the birth certificates of children of 'homogenous couples' will be automatically registered, including those born from surrogacy. Although the law and subsequent rulings firmly condemn the practice and point the way to 'adoption' for the 'intended' parent. But the registry office is the responsibility of the State, not of local administrations. And the Milanese have never been asked about it: all the critical aspects of a unilateral and very glamorous decision that could also present profiles of unconstitutionality
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"We have restarted the recognition of children born in Italy by homogenous couples': the words with which the mayor Beppe Sala announced his personal 'gift' to Pride have initially caused some confusion. In fact, children born 'in Italy' on the initiative of - and not 'by' - homogenous couples are only the children of women united with other women. The children of male couples are born in Canada, California or other procreative tourism destinations, but not in Italy because our country, like the vast majority of countries in the world - in fact it is already almost a universal crime - prohibits and punishes the use of surrogacy.

However, it was soon realised that The Milan mayor's decision will also affect children born by gestation for others.

La law 40 which regulates the matter does not lend itself to misunderstandings and punishes with imprisonment from three months to two years and a fine from EUR 600,000 to EUR 1 million not only those who carry out but also those who 'advertise' gestation for others. No less clear-cut are the subsequent judgments, starting with that of the Constitutional Court (272/2017), rapporteur Giuliano Amato, who strengthens the ban by defining uterus for rent "a practice that intolerably offends the dignity of women and deeply undermines human relations". Another 2019 ruling, this time of the Court of Cassation, United Sections, reiterated that in order to protect public order and above all the child's right to the truth about his or her origins the order of a foreign court may not be transcribed in Italian civil status registers affirming the filiation relationship between a child born abroad through surrogacy and an Italian subject who has no biological relationship with him. The same judgment indicates as a possible avenue for the biological father's partner the institution of adoption in special cases.

It has been said of this institution that the procedure is often very slow and, above all, that it does not establish legal ties between the adoptee and the adopter's relatives. However, this problem has been overcome by a further ruling of the Constitutional Court -March 2022-, which, while reaffirming the absolute disvalidity of surrogacy and the impossibility of an 'automatic' transcription of the birth certificate, recognises these legal ties and calls on Parliament to legislate on the status filiationis of these children.

Parliament has not yet legislated, and on the strength of this, Mayor Sala felt he had to do 'his part'. But can this be called 'the his part'?

Registry is the competence of the central state and the references for local administrators, even those with national ambitions, are necessarily state law and court rulings. And as we have seen today Both the law and the judgments indicate adoption as the only path for the 'intending parent', as well as reiterating the firm negative judgement on gestation for others.

The automatic transcription of these foreign birth certificates therefore seems to circumvent the rules currently in force at national level: in essence Mayor Sala's 'gift' to Pride does not seem to be within his means, and he cannot presume to interpret the will of the majority of citizens which can only be represented by the legislator. Above all that 'gift' effectively removes the main disincentive for those considering resorting to this practicethus distances itself from the negative judgement on the 'disvalue' of surrogacy expressed in the law and invariably reiterated in the judgments.  

But children? this is the main topic of those who support the automatic transcription of these birth certificates. Those children will enjoy the rights guaranteed to every other child, from paediatrician to school, and will also 'enjoy' the second parent who adopts them. But will never enjoy the overriding right, being the objects of a commercial contract between wealthy principals and women in need, not to be separated from the mother who has just given birth to them, an irreplaceable pillar of what is called the best interests of the child (best interest).

That wound, caused by a deed, will never heal. From the perspective of harm reduction for children, the practice of womb renting should therefore be discouraged in any way - as is the case, we should reiterate, in the vast majority of the world except for some 20 countries out of 206 - and should not be facilitated by administrative acts.

A'last notation of some significance. A woman giving birth to a child -mater semper certa- is obliged to declare the truth about the paternity of her child (if the woman is married, unless explicitly disowned, paternity is automatically attributed to her husband). In the case of a false declaration, that mother, if discovered, is prosecuted precisely because of the child's superior interest in the truth about his or her origins as well as for reasons of public policy.

So-called homogenous couples would therefore have a licence to blatantly perjure themselves in public deeds -more: the impossibility of indicating a second father or mother without being prosecuted.

But Article 3 of the Constitution declares us equal before the law: is it possible to base inequality on sexual orientation?  

Marina Terragni

published on Advent 5 July 2022

Next update: from the registry office explain that the decision of Mayor Beppe Sala and councillor Gaia Romani is a act of 'civil disobedience against national legislation'., an act that apparently intends to bypass the rulings we mentioned in the article and that refers to a single judgment, Supreme Court Decision 7688/2020.

This judgment examines a specific case, authorises the indication of two mothers in a birth certificate in the name of affective continuity for the child. But it is also expressly and unequivocally stated that the device does not apply to "male homosexual couples, for whom artificial parenthood necessarily passes through the separate practice of surrogacy (or gestation for others), which is prohibited by a provision (Article 12(6) of Law No. 40 of 2004) that has been held to be expressive of a principle of public order, protecting fundamental values such as the dignity of the pregnant woman and the institution of adoption, not unreasonably considered by the legislature to take precedence over the best interests of the child, without prejudice to the possibility of nevertheless giving prominence to the parental relationship through recourse to other legal instruments, such as adoption (Cass., sec. un., no. 12193 of 2019)".

Ignoring, apparently, this passage Instead, Mayor Sala and Councillor Romani intend to refer to that ruling to also transcribe male 'homogenous couples', that is, they have resorted to womb renting. And what's more the true challenge, The right that demands to be affirmed is the right to the uterus for rent, which is indispensable to male 'homosexuals'. Possibly until the lawfulness of the practice is established in Italy.

The rest is purely incidental. Women matter little, even in this case. Female 'homogeny' (where the mother, in any case, is present) only serves as a Trojan horse for male homogeny.

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