Abstract
In the judgement no. 38162/2022 the Supreme Court of Cassation, in its maximum composition (“Sezioni Unite”), ruled the matter of the legal instrument through which it is possible to protect the child born from surrogacy carried out abroad, after having deepened the reasons for the prohibition of surrogacy established by the Italian legal system (as well as by most European legal systems), identified in the protection of the dignity of the woman. Indeed, surrogacy treats the mother as a simple «gestational carrier» and thus degrades her to a mere means for the satisfaction of other people’s procreative purposes. Therefore, the prohibition has a constitutional foundation and expresses a principle of international public order. Consequently, the foreign birth certificate or the foreign judgement cannot be recognized in Italy limited to the part in which they attribute parenthood to the subject who has not a biological link with the child. According to the Suprem Court, the most appropriate way to protect the child is to apply simple adoption (“adozione in casi particolari”). The essay, after having agreed with the idea according to which surrogacy in all its forms harms the dignity of the woman and having stressed that it harms at the same time the woman’s health and the dignity of the unborn and newborn child (since surrogacy treats the child as a product of the work of the woman’s body and as an object of delivery), focuses on the alternative between full transcription of the birth certificate and simple adoption and discusses which of the two is the one less conflicting with the general principles of the system. Even though the application of simple adoption to the (heterosexual or homosexual) cohabitant of the biological parent would require an explicit legislative provision, this way seems less disruptive than the other one, which frustrates full adoption and is contradictory to the choice of the legal system to allow the contestation of maternity in case of supposition of childbirth.
| Translated title of the contribution | [Autom. eng. transl.] Surrogacy abroad and status of the newborn. The United Sections confirm the incribability and reaffirm the path of adoption in particular cases |
|---|---|
| Original language | Italian |
| Pages (from-to) | 45-73 |
| Number of pages | 29 |
| Journal | CORTI SUPREME E SALUTE |
| Publication status | Published - 2023 |
Keywords
- Surrogazione di maternità
- Surrogacy
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