Judgements must be read carefully because the devil, so to speak, is in the details. But no doubt that the The United Sections of the Supreme Court, in its judgment 38162 filed yesterday, once again rejected the request for full and automatic registration of birth certificates of children born abroad by surrogacy, allowing only the indication of the biological parent at the registry office.
The question was very simple. In short: should the birth certificate drawn up in Canada of a child born through surrogacy at the initiative of two men be transcribed in its entirety, indicating not only the biological father but also the so-called 'intended father'? The answer of the Supreme Court is equally simple (NO)in line with another Supreme Court ruling in 2019.
As for the partner who has shared the project -and the contract- of resorting to gestation for others and is not the biological parent, the only possible way to be recognised as a parent in turn remains an application to the juvenile court (adoption institution in special cases).
Moreover, in line with Law 40 and all subsequent rulings, Yesterday's pronouncement repeatedly reiterates the condemnation of surrogacy as a high value and as a practice that 'intolerably offends the dignity of women and deeply undermines human relations'.
A serious setback for the claims of 'surrogates'.
As mentioned, the path of adoption in special cases had already been indicated by the 12193/19 judgment of the Supreme Court in United Sections, and is therefore reaffirmed. The first important consequence is that all registers that with an autonomous decision are proceeding with the full and automatic registration of these birth certificates performed abroad -for instance, that of the Municipality of Milan- shall immediately suspend such registrations, already contrary to the provisions of public policy and subsequent rulings: thecomplaint against the mayor of Milan Beppe Sala recently filed by the Network for the Inviolability of the Female Body finds further grounds in yesterday's ruling.
We expect the mayor to draw the inevitable consequences.
It is true that in 2021 the Constitutional Court found the instrument of adoption in special cases to be not entirely adequate and indicated the need for Parliament to legislate on the issue of these birth certificates, balancing the aim of discouraging the use of surrogacy with the child's interest in affective continuity. The new ruling is in line with this approach. But as things stand, Parliament has not yet legislated and in the meantime the institution of adoption in special cases has been reformed (Constitutional Court 79/22) and made fully legitimate, hence adequate.
More problematic is the passage in the judgment where it is argued that in the name of the child's best interests, the judge could give his or her consent to adoption by the biological parent's partner even if the biological parent disagreed: a delicate juncture that would probably concern a very small number of cases and could in any case lead to a flood of appeals.
The fact remains that Yesterday's verdict, which greatly disappointed the rainbow lawyers -and is the subject of some press interpretations that are, to say the least, fanciful and tend to minimise the defeat, such as this from the Corriere della Sera- unequivocally reiterates its condemnation of the uterus for rent and once again denies the possibility of automatically transcribing such birth certificates, a denial that continues to be a strong disincentive to resort to this practice.
While waiting for Parliament to legislate, if it intends to do so, regulating the issue of birth certificates and possibly considering the possibility of prosecuting surrogacy as a criminal offence even if carried out abroad.