La surrogazione di maternità ed il diritto della famiglia al bivio

The essay deals with the study of surrogacy agreements both under Italian law and under the European Convention of Human Rights. First, the A. examines the reasons for the prohibition of surrogacy by Italian law and by the generality of European legal systems and finds them in the protection of constitutional interests, mainly human dignity. Secondly, the A. wonders about who should be considered the mother of the child born by a prohibited surrogacy and, having argued the impossibility of proving that the criterion of childbirth prevails over the genetic one, and vice versa, in order to identify motherhood, he suggests to grant the legal status of mother to the woman who gave birth to the child, since this rule is the best one in order to prevent surrogacy. However, this rule might not apply if there is a strong de facto relationship between the child and the intended parents, so that to disregard this relationship could jeopardize the best interest of the child. Finally, the A. observes that, besides to surrogacy, in several other fields of contemporary family law an increasing trend aims to reverse the relationship between fact and law. This trend should be carefully taken into account: on one hand, the law should definitely try to fulfill the mature needs of human society; on the other, law must at the same time rule it according to the constitutional principles, which are the primary source to qualify reality.