THE ECHR CONSIDERS LEGITIMATE THE PROHIBITION ON THE AUTOMATIC TRANSCRIPTION OF THE BIRTH CERTIFICATE OF CHILDREN BORN ABROAD THROUGH SURROGACY

"The Italian rules prohibiting the transcription of birth certificates of children born abroad with gestation for others, in which the intended parent is indicated, do not affect the right to private and family life.”. This was stated by the European Court of Human Rights with sentence no. 1079/12, issued on the 22 of June 2023, deeming inadmissible three requests (no. 10810/20, no. 47998/20, no. 23142/21) proposed by homosexual and heterosexual couples who asked for the condemnation of Italy for the violation of Article 8 of the ECHR, which establishes the right of respect of the private and family life.

In particular, the applicants had challenged the Italian authorities' refusal to enter in the population registers the birth certificates of minors born abroad through surrogacy.  

However, in disagreement with the positions expressed by the applicants, the Judges of Strasbourg, with the aforementioned sentence, have ruled that the prohibition of the automatic transcription of such certificates does not determine the violation of Article 8 of the ECHR because the child’s right to have a stable relationship with the so called “intended parent” is guaranteed by the possibility of the adoption, at the conditions established by Article 44,  a) and d), of Law 183/1984.

However, this denial represents a further missed opportunity for Italy to intervene in filling the regulatory gap that could be find in such a delicate matter, with important repercussions on the protection of children's rights.

As known, surrogacy is criminally sanctioned in our legal system by art. 12, paragraph 6, L. 40/2004, because it is considered detrimental to the dignity of women and contrary to public order.

As a result of this prohibition, in these years, many couples have decided to go abroad to have the opportunity to have children by this practice, generating an intense and problematic "procreational tourism".

In fact, the positions adopted by the various European States regarding the admissibility of this practice are uneven. Those positions reflect, in turn, a different sensitivity of each State to the concept of public policy and, consequently, to what may be regarded as detrimental to that principle. The latter is in fact an extremely changeable concept due to time and place, as it is identified with the core of values of each national community.

The present case, submitted to the scrutiny of the Strasbourg Court, originates precisely from the contrast between the different national regulations on this matter and from the persistent legislative inertia in disciplining the transcription of the above-mentioned certificates. So, in the silence of the legislator, the national judges are left alone in the regulation of the effects of illicit practices, such as surrogate motherhood, lawfully carried out in countries where are admitted.

The ECHR, in defining this question, has done nothing but adopt the orientation now consolidated by the jurisprudence of legitimacy.

In particular, the Court of Cassation,  in two significant judgments (n.12193 of 2019; n. 38162 of 2022), has stressed that "since the practice of surrogate motherhood, regardless of the way it is practiced and of the purposes pursued, intolerably offends the dignity of women and deeply undermines human relationships, the foreign judicial provision  and, a fortiori, the original birth certificate, which indicates as the parent of the child the parent of intention, who together with the biological father wanted the birth by resorting to the surrogacy in the foreign country, albeit in accordance with the lex loci, cannot be automatically transcribed”.

The Supreme Court then has underlined that "the inescapable need to ensure the child born by surrogacy the same rights as other children born in different conditions is guaranteed through adoption in particular cases, pursuant to art. 44, paragraph 1, lett. d), L. 4 May 1983, n. 184”.

Therefore the “adoption in particular cases”, to date, represents the only tool that allows the “intentional” parent, who has collaborated in the growth and education of the child since the moment of birth, to give recognition to the bond between him and his child. This institution presupposes a case-by-case judgment, in the light of the interests of the child, on the suitability of the adopter to be the holder of parental authority, through a concrete verification of the parental plan and of the constant care shown by the latter towards the child, without any prejudice to the fact that the couple is heterosexual or homosexual.

As highlighted by the Consulta, it is clear that this type of adoption is an inadequate and insufficient protection for the minor, in contrast to those that are the fundamental principles of our national and international legal system.

This form of adoption, in fact, unlike "full" adoption, risks creating a discrepancy between the condition of the biological parent and that of the so-called "intentional" parent; in fact, adoption in particular cases does not determine the constitution of legal parental ties with the relatives of the adopter, presents limitations on the right to succession of the child towards his adoptive parent and, in any case, does not guarantee an immediate recognition of the filiation relationship as required by the ECHR in order to protect child's vulnerability condition.

Considering what has been said, it follows that, to avoid a "jurisprudential drift", it is urgent a legislative intervention in order to protect the rights of children and parents who have decided to resort to surrogacy.

author: Dott.ssa Chiara Saso