The “surrogate motherhood” is a practice, absolutely legal in some countries, according to which it is implanted in the uterus of the surrogate mother, a woman who is not part of the couple, who carries on the pregnancy.
A contract is normally concluded with the surrogate mother in which the woman, in exchange for the payment of a sum of money, undertakes to continue the pregnancy and not to recognize the unborn child.
At the time of delivery, the child is immediately given to the buyer parents and the birth certificate is issued by the competent authorities, certifying that the parents are the two spouses.
In Italy, this practice is prohibited by the Law of 19 February 2004, n. 40. This law, however, while placing an absolute ban on surrogacy, does not regulate cases in which there are children already born and wanted by the couple.
It is also noted that surrogacy is also contrary to the principles established by the European Union with the Oviedo Convention with law 145 of 2001.
In the face of reports from some of our representations of cases of supposed surrogacy of maternity, we proceeded to consult the Ministry of the Interior in order to identify a shared standard of language in the cases of presentation of birth and issuance certificates suitable travel documents for minors to enter Italy.
On the basis of what was agreed with the competent Ministry of the Interior, it was concluded that in the presence of formally valid birth certificates, the consular officer, although aware of the fact that the birth derives from “surrogate motherhood”, must accept the and forward them to the competent Municipality, however at the same time giving appropriate information of the particular circumstances of the birth to the Municipality and the competent Public Prosecutor’s Office. The registrar, in accordance with current legislation, will verify the existence of the hypothesis that the birth derives from surrogate motherhood for the motivated refusal to transcribe the deed. Upon receiving the birth certificate, the consular officials will inform the interested parties that the same act, before being transcribed in the civil status registers, will be subject to scrupulous attention in relation to any problems of conflict with the legislation in force due to violation of the principles of the Italian legal system regarding “medically assisted procreation”. It must also be highlighted by the consular officer that in the event that the investigation should reveal that it is a matter of “surrogate motherhood”, the civil status officer will not be able to transcribe the birth certificates in the civil status registers and the interested parties will incur the crime referred to in art. 567 of the criminal code, which entails for the suspects, in the event of conviction, the accessory penalty of forfeiture of parental authority with obvious consequences on the children who are now born. In any case, it was agreed in agreement with the Ministry of the Interior that, in the supreme interest of the minor, the same must in any case be issued a travel document suitable for entry into Italy.
The United Civil Sections of the Supreme Court of Cassation, deciding, on a particularly important question of principle, relating to the transcription in Italy of the birth certificate, duly formed in a foreign country, of a child born in Canada through the practice of gestation for others, which a homosexual male couple of Italian citizens had resorted to, married in that foreign State, with a deed subsequently transcribed in Italy in the register of civil unions, stated that: the practice of gestation for others, whatever the modalities of conduct and the aims pursued, offends the dignity of women in an intolerable way and deeply undermines human relationships; this excludes the automatic transcription of the foreign judicial provision, and “a fortiori” of the original birth certificate, in which the intended parent is indicated as the parent of the child, in addition to the biological father, even if the birth certificate is been formed in accordance with the “lex loci”; that, nevertheless, even the child born resorting to gestation for others has a fundamental right to recognition, even juridical, of the bond born by virtue of the emotional relationship established and lived with the one who shared the parental plan, and that the inescapable need to ensuring the same rights as other children is guaranteed through adoption in particular cases, pursuant to art. 44, paragraph 1, lett. d), of the law no. 184 of 1983, since, in the state of evolution of the legal system, adoption represents the instrument that allows for legal recognition, with the achievement of the “status” of child, of the de facto link with the “partner” of the parent genetic that shared the procreative design and contributed to caring of the child from the moment of birth.