11 December 2021

Open letter to the Mayor of Milan and his Council: why the 'two fathers' should not be transcribed

The transcription of the birth certificates of children born from a surrogate motherhood circumvents the ban on the practice, gives precedence to a private interest - based on a commercial contract - over the public interest, and authorises the father to blatantly lie about the filiationis status - if a mother did so she would be prosecuted for forgery. Are we therefore unequal before the law in violation of Article 3 of the Constitution?
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The use of surrogacy or surrogate motherhood is a criminal offence almost all over the worldThe practice is only permitted in some 20 countries out of more than 200.

In Italy, the prohibition is expressed by law 40 - art. 12, paragraph 6 - and confirmed by the Constitutional Court. (judgment 272/2017): a ruling in which, in addition to reaffirming that surrogacy "intolerably offends the dignity of women and deeply undermines human relations"as for the transcripts of the birth certificates of these children claims that "cannot be contrasted with the favor veritatis the favor minorisas the false recognition infringes the child's right to his or her own identity".

Also with reference to this judgment, in 2019, the Court of Cassation denied the possibility of transcribing a measure issued by a foreign court in the Italian civil status registers which recognised as father the partner of the biological parent of a child born from a surrogate mother's womb, indicating as a possible route to filiation the so-called adoption in special cases.

Subsequently, the Constitutional Court (judgment 33/2021) indicated that "the identification of solutions capable of remedying the current situation of inadequate protection of the child's interests is imperative", calling on the legislator to take a decision on the matter, a decision which has not yet been taken.

On the basis of the latter judgment the Court of Milan has recently held that, since the legal loophole persists, the Municipality of Milan is obliged to transcribe the birth certificate of a child born abroad through a surrogate by the will of two men, there being no need for adoption "because the parental relationship is formed directly with the intending parent" (?).

The transcription orders by the Court would be 2.

Like Network for the Inviolability of the Female Body (RadFem Italia, Udi, Arcilesbica, Se Non Ora Quando Sister and many other national groups, international associations such as Women's Human Rights Campaign and CIAMS and hundreds of individuals, including Luisa Muraro and others from the Women's Bookshop of Milan) in 2019 we have already brought the issue of the inappropriateness of these transcriptions to the attention of the Milan City Council and obtained a stop to themand indicating the path of adoption in particular cases. A few weeks later, the United Sections of the Court of Cassation ruled in favour of the Milan City Council in its choice.

today we go back to asking

the Municipality of Milan to continue to resist these injunctions, which we consider to be completely arbitrary and which would further encourage the practice of surrogacy - which, again, in Italy and practically all over the world is a serious crime - by facilitating the process.

In particular we observe that by complying with the Court's requirements the Municipality would be agreeing to let - on the basis of a commercial contract - a private interest prevail over the public interest, which is the one stated in the law and reaffirmed by the above judgments.

We would also like to point out that the transcription of this birth certificate would constitute an open violation of Article 3 of the Constitution, which requires us to be equal before the law, and as such would be appealable.

If a woman were to lie to the civil registrar, albeit 'for the sake of the child', about the biological paternity of her child, she would be liable to prosecution for forgery.

"Imprisonment [from five to fifteen years] shall be imposed on any person who, in the course of drawing up a birth certificate, alters the civil status of a newborn child by means of false certification, false attestation or other falsehood". (Article 567 of the Criminal Code).

This is reiterated in the aforementioned judgment 272/2017 of the Constitutional Court, which states that "cannot be contrasted with the favor veritatis the favor minoris, since false recognition infringes the child's right to his or her own identity".

In the case of the 'two fathers' the lie is self-evident: the biological father indicates another man as his father, which is unrealistic. -or as a mother a woman who is not a mother. But according to the Court of Milan, not only should he not be prosecuted, but he should be prosecuted. should even be recognised in the exercise of his 'special' right (based, let us repeat, on a private commercial contract).

This right is therefore misogynistically unequal: the mother is always obliged to tell the truth about the child's origins, an obligation from which the surrogate father is dispensed.

We therefore propose, paradoxically, that if the Municipality of Milan were to comply with the judgment of the Court of First Instance, under Article 3 of the Constitution the possibility of lying about the status filiationis be allowed to all, especially ALL, by decriminalising forgery.

Network for the Inviolability of the Female Body

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