10 March 2021

Constitutional Court: rainbow children law needed. But surrogacy remains a serious crime

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Two judgments of the Constitutional Court -issued on 28 January, reasons announced in the last few hours-. They call on Italian legislators to devise arrangements which, in the name of the "best interests of the child", allow so-called "intended parents", including surrogate parents, to be recognised as parents in their own right, even in the absence of biological ties and even if they have committed a crime.

While rejecting as "inadmissible" the questions posed by the first section of the Court of Cassation concerning two controversial cases of "homogenitoriality", The Constitutional Court threw the ball back to the legislators: they are the ones who must offer a certain and unequivocal answer. We need a law, and we need it now.

A judgment of the Court of Cassation United Sections (12193/2019) had already clarified that the partner of the biological parent could not be transcribed tout court in the child's birth certificate-or as a parent-in order to respect the child's right to the truth about his or her origins, indicating as a solution to ensure emotional continuity the so-called "adoption in special cases'.

But now the Constitutional Court, while reaffirming that the surrogate motherhood constitutes a "high degree of disvalue"and recognising that the practice "intolerably offends the dignity of women and deeply undermines human relations" (judgment 272/2017), states however that adoption in particular cases is too slow and cumbersome a procedure and establishes too 'weak' a bond between child and adoptive parent.

The remarkable fact is that both judgmentsAlthough they concern different cases (a gay couple and a lesbian couple, surrogacy and assisted reproduction), what they have in common is that they are not one and the same thing. minimization of the mother, which in the second case is also sacrificed on the altar of the 'bigenitoriality'.

La Judgment No 33/21 concerns the case of two men married in Canada, one of whom is the biological father of a child born from a surrogate, while the partner is a simple participant in the "parental project'.. In Canada the child is registered as the child of both men, but in Italy the transcription of the birth certificate is not possible. The applicants request that the "intentional father" is recognised as a parent.

In the appeal the mother is never mentioned as the motherbut as "woman in whom an embryo formed with the gametes of an anonymous donor had been implanted'.. On the other hand, considerable emphasis is placed on the "will of the intending parent". And it emphasises the right of the child "to know their parents, to be brought up by them and not to be separated from them".when so-called surrogacy is based precisely on the separation of the child from its mother and in almost all cases on the anonymity and deletion of both the egg-producer and the pregnant woman, i.e. on the non-knowledge of the mother. Those female bodies are worth nothing, they are just matter and 'receptacle', as in the purest Aristotelian tradition, while the male 'intention' and will are everything and give form to that inert substance.

The Court indicates that 'ndecisions concerning the child should always seek "the best solution 'in practice' for the child's best interests, i.e. the one that best guarantees, especially from a moral point of view, the child's well-being". best 'personal care"". As if being deprived of the mother by a commercial contract was not the denial in principle of the "better personal care". Finally, he points out as a possible solution a "an effective and expeditious adoption procedure which recognises the full extent of the filial bond between the adoptive parent and the adoptee, once it has been ascertained that it is in the child's best interests". In fact, according to the court, adoption in particular cases "constitutes a form of protection of the child's interests that is certainly significant, but not yet fully adapted to the yardstick of constitutional and supranational principles". also because "it also requires the necessary consent of the 'biological' parent for its completion". Again, as if the status of 'intention' were equal to that of 'biology'. Biology, however, if it is downgraded here, has for years fuelled the growing business of assisted reproduction and surrogacy at the expense of adoption: a child of your 'blood' at any cost.

In conclusion "this Court can, at this stage, only halt, and duly give way to the discretion of the legislator, the identification of solutions capable of remedying the current situation of insufficient protection of the child's interests is now a matter of urgency".

La judgment no. 32 concerns a woman who is the mother of twins brought into the world by assisted reproduction. carried out abroad (in Italy, a single woman cannot have access to the practice) in agreement or 'parental project' with her partner. The twins are registered at the civil register office as the daughters of the biological mother, while the partner does not appear on the birth certificate. Following the separation of the two women, thea 'non-mother' partner turns to the Court of Padua to ask for legal recognition of her bond with the twins. The judges of Padua in their turn turned to the Consulta. The woman asked to be recognised as a parent on the grounds that she was "consenting to heterologous fertilisation"made by the partner, sharing the "Pma project"and denouncing the fact that "adoption in particular cases... was impracticable, since Article 46 of that law requires the consent of the adoptee's legal parent, which was denied in the present case"..

In this case, it is the mother's will that is being questioned. Here again a minimisation of the mother. But the will of the mother cannot be circumvented. A woman does not need any "consent"The principle of 'motherhood' cannot be violated by a man, even if he is the biological father, or by a woman who occupies the symbolic place of the father. The woman has the first and last word on motherhood, and this principle cannot be violated.

According to the applicant, however, 'would be violated the right of every child to have two people who assume responsibility for its maintenance, upbringing and education". Therefore "same-sex couples' LDC births, for which adoption is not possible in special cases, would be destined to a permanent status of single-parent childrennot recognisable to the other person who contributed to the procreative project". An astonishing passage: it is not clear what this "the right of every child to have two people"in addition to the damnation of being "children of one parent"if not the ideology of equal bigenitoriality on which the theories of parental alienation and of the bad mother distancing the child from the father are based. The claim here appears very similar to that of many separated fathers who accuse mothers of Pas.

The Court also dismisses as inadmissible the questions put by the Tribunale di Padova but invokes the initiative of the legislator by stressing ".the urgency of such action'. it is evident that "births as a result of heterologous fertility treatment carried out by two women are in a worse condition than all other births". And reiterating that "the continuation of legislative inertia can no longer be tolerated, so serious is the lack of protection of the child's best interests"indicates as a possible way forward "as an example... a rewriting of the recognition provisions, i.e. the introduction of a new type of adoption, granting, by means of a timely and effective procedure, the full rights attaching to filiation".

As for the "new type of adoption"it should be noted that any reform of so-called 'special case adoption' should apply to all and not as a fast track for same-sex couples. It is hard to see why the same preferential treatment should not also apply to heterosexual couples on the basis of a principle of justice: let us consider the very frequent case of a woman who is the natural mother of a child and wishes to have her child adopted by her new partner or husband. Why should she have to go through a long and painful process - the juvenile court, social workers, psychological interviews, and so on - while a person with a homosexual orientation could have access to a 'simplified' stepchild?

Finally, it should be noted that in the report on the opening of the judicial year First President of the Court of Cassation Mario Curzio had already dedicated a paragraph to the "new frontiers in parenting"(see here)

Marina Terragni

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