Ancora sulla surrogazione di maternità. Ragioni del divieto e tecniche di tutela del nato

The essay deals with surrogacy, aiming to deepen in an integrated way both the reasons for the prohibition established by the Italian legal system (as well as by most European legal systems) and the legal instrument through which it is possible to protect the child born from surrogacy carried out abroad, from the point of view of the establishing of the relationship of filiation with those who have resorted to surrogacy and aspire to be recognized as the parents of the child. Preliminarily, the most common expressions used by the scholars (such as gestation for others, surrogacy of motherhood and intended parents) are submitted to criticism because they are misleading. The reasons for the prohibition of surrogacy are identified in the protection of the dignity of the woman, as well as of the unborn and newborn child. 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. At the same time, surrogacy treats the child as a product of the work of the woman’s body and as an object of delivery. Therefore, the prohibition has a constitutional foundation and expresses a principle of international public order. This implies that 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. The most appropriate way to protect the child is to apply the rule of article 279 of the civil code, in order to attribute him all the rights towards this subject, without attributing reciprocal rights to this subject towards the child. Nevertheless, since the decisions of the courts ignore this legal instrument and focus on the alternative between full transcription of the birth certificate and simple adoption (“adozione in casi particolari”), the essay 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. Finally, arguments are advanced to justify the recognition of paternity of the subject who has a biological link with the child.