RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE
Abstract
Nowadays surrogacy is a widespread practice for childless parents. Surrogacy laws vary widely from State to State. Some States require genetic parents to obtain a jurisdictional order to have their names on the original birth certificate, without the name of the surrogate mother. Other States (e.g. Ukraine) allow to put the name of the intended parents on the birth certificate. In Italy all forms of surrogacy are forbidden, whether it be traditional or gestational, commercial or altruistic. Act n. 40 of 19/2/2004, entitled “Rules about medically-assisted reproduction”, introduces a prohibition on employing gametes from donors, and specifically incriminates not only intermediary agencies and clinics practising surrogacy, but also the intended parents and the surrogate mother too. Other penal consequences are provided by the Criminal Code about the registration of a birth certificate where parents are the intended ones, as provided by the lex loci actus (art. 567 of the Italian Criminal Code, concerning the false representation or concealment of status). In the cases decided by the Criminal Italian Courts of First Instance (Milan and Trieste), the judges excluded the criminal responsibility of the intended parents asking for the registration of foreign birth certificates, not exactly genuine (due to the absence of genetic ties for the intended mothers), affirming in some way that subverting the effectiveness of the Italian prohibition of surrogacy may be justified by the best interest of the child. Apart from the mentioned criminal problems, several aspects of private international law are involved in the legal reasoning of the courts in these cases, among which, probably, the one that the principle of the child’s best interest should have been read not like an exception to the ordre public clause but like a basic value of this clause, in view, among others, of the ECtHr case law.
