29 January 2021

Constitutional Court: a law is needed on the recognition of surrogate children

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In a ruling handed down yesterday, the Constitutional Court called on the Italian Parliament to legislate on the issue of recognition of children born from surrogacy, considering that "without prejudice to the criminal prohibition of surrogacy, the current legal framework does not ensure full protection of the interests of the child born through surrogacy technique"This was announced by the Court's press office in anticipation of the filing.

In short: the order - no. 8325/2020 - of the Court of Cassation had posed the Constitutional Court with the problem of the 'inability' of the Court of Justice to decide whether or not to apply the law.impossibility of registering as both 'fathers' of the child born of surrogacy carried out abroad (indeed, the Supreme Court in United Sections had already clearly spoken out against this possibilitybut surprisingly, the First Chamber wanted to reopen the question).

Put in a more technical wayThe order raised the question of the constitutionality of Article 12(6) of Law no. 40 of 2004 (the article of law prohibiting and sanctioning the use of surrogate wombs in Italy), of Article 18 of Presidential Decree no. 396 of 2000 and of Article 64(1)(b) of Law no. 40 of 2004. gand Law No 218 of 1995 in so far as do not allow that the inclusion of the so-called 'intended parent' be recognised in the civil status certificate of a child born of a surrogate mother. According to the order, the judgment of the United Sections is in irreconcilable conflict with the opinion expressed on this matter by the Grand Chamber of the European Court.

The Constitutional Court declared the question "inadmissible", but recognised the existence of the problem and referred it back to the legislator.

The "problem", as we were saying, had already been addressed and resolved by the Court of Cassation itself in judgment no. 12193/2019 in Sezioni Unite, which held that only the biological father of the child born of a surrogate mother could be registered at the civil register, while his (or her) partner, lacking any biological ties with the creature, could possibly have recourse to the institution of theadoption in special cases. That ruling considered the child's right to emotional continuity, but gave priority to his or her right to know the truth about their origins, while rejecting the right of the so-called 'intended parent' to be registered at the registry on the basis of his or her mere participation in a 'parental project' guaranteed by a commercial contract with an associated payment. Children are not paid for, parental status is not for sale (for those who can afford it) and the mothers we are all born to are not erased with a bank transfer.

As written in the letter sent to the Constitutional Court by our Italian Network against Utero in Rent "the first right, interest and need of every person who is born is not to be torn away from the mother who gave birth to him or her, and to know that it was from her that he or she came into the world.". 

Unfortunately, the Court of Justice, which in its judgment 272/2017 had also reiterated the prohibition on the use of surrogacy, a practice which, as it is written, is not permitted. "intolerably offends the dignity of women and deeply undermines human relations'.in its new pronouncement invites the legislator to examine the issue and therefore seems to open up the possibility of full transcription to the registry birth certificates issued abroad for births and births through 'surrogacy'.

If the law were to allow the full transcription of those birth certificates, it would in fact be a semi-recognition of the legitimacy of the practice despite its stigmatisation, removing a significant obstacle for the benefit of those who use it.

In a completely different direction is the A bill currently being considered by the House Judiciary Committee that proposes making it a punishable offence to use surrogacy even if carried out abroad.

But what strikes like a punch in the stomach is that in the Court's judgment, the practice is referred to as an technique. The surrogate mother uses the techniques of assisted fertilisation - ovarian stimulation, egg retrieval, in vitro fertilisation, implantation in the uterus and so on - but cannot in any way be called a technique in itself. The surrogate motherhood is slavery, it is material and spiritual poverty, it is the buying and selling of the human being, it is the violation of fundamental rights, it is the erasure of the mother, it is the painful detachment of the creature from those who gave birth to it, it is the claim that desires become rights and that money is the sole measure of all other values. All this cannot, inhumanly, be called a technique.

Marina Terragni


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