31 December 2020

Surrogacy and 'two fathers': our letter to the Constitutional Court, which will rule on 27 January

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In an order - no. 8325/ 2020 - the Court of Cassation again requests the Constitutional Court that a surrogate or surrogate child can be born or registered as the daughter of two fathers, the 'biological' father and the other defined as the 'intentional' father. The United Sections of the Court of Cassation had already clearly ruled against this possibility, but surprisingly, the First Section decided to reopen the issue and now the Constitutional Court's ruling is awaitedscheduled for 27 January. Court to which we at the Italian Network against Uterus for Rent we have addressed the following letter.

"Judgment No. 12193/2019 of the United Sections of the Italian Supreme Court has offered legal consistency to what we women of the Italian Network against Utero in Rent have always advocated: namely that thehe first right, interest and need of each person who is born is not to be torn away from the mother who gave birth to him, as well as knowing that it was from her that he came into the world. 

A few months before the sentence was handed down, we called on the Mayor, the Council and the City Council of Milan to stop the automatic transcription - which was now becoming established as customary - of foreign birth certificates of children born from surrogate wombs. Birth certificates in which the truth about the origins of the creatures was replaced and 'surrogated' by the claiming to be indicated as fathers or mothers in the absence of a genetic link, on the basis of a simple 'intention' - as well as the fact of having paid for this supposed 'right' - thus perfecting the cancellation of the mother provided for in subrogation contracts. 

We asked that only the biological parent is indicated on the birth certificate, possibly suggesting adoption by the father's partner in special cases as a possible way of ensuring emotional continuity. We have been heard. The Municipality of Milan blocked the transcriptions well before the judgment 12193/2019 which clearly indicated this path. 

We therefore learned with astonishment of Order No 8325 of 2020 by which, a few months after that judgment, the Court of Cassation itself (first section) reopens the question again. The order raises 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 Article 64(1)(b) of Law no. 40 of 2004. gand Law No 218 of 1995 in so far as they 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 by the Grand Chamber of the European Court on this matter.

It is neither our task nor our intention to delve into the formalities of legal issues, which we feel we can detect the speciousness. The substance is in the repeated attempt to bring back in through the window what we thought was definitively thrown out through the door: Recognition of full parenthood for those who are parents is not on the basis of a supposed economically acquired 'right', where money can do everything, also violate the dignity of a woman who is clearly in need (more than one, including egg cell suppliers) and jeopardise the destiny of a creature to whom such a deep and irremediable wound has been inflicted. one's own desire to count more than everything and everyone else?

Allowing the full transcription in the civil registry of birth certificates issued abroad for surrogate births (not to mention the possibility that the ban on surrogacy laid down in Law 40 may be deemed unconstitutional). would open the door to a practice that the Constitutional Court itself has confirmed to be unlawful, stating that "intolerably offends the dignity of women and deeply undermines human relations'. (judgment 272/2017). 

We therefore express the hope that the Constitutional Court will adhere to what has already been clearly expressed and reiterated and will reject in its entirety what was proposed in the Supreme Court's order 8325/2020."

Italian Network against Uterus for Rent.   

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