Adoption v. Surrogacy: New Perspectives on the Parental Projects of Same-Sex Couples

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 medicallyassisted 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). Apart from the mentioned criminal problems, several aspects of private international law are involved. In the cases where national rules forbid the transcription of birth certificates for public policy reasons, specifically the prohibition of surrogacy, Italian Judges often seek solutions to enforce the status filiationis. In this case, the Italian Supreme Court intervenes in the debate, allowing the recognition of a foreign ©  Sara Tonolo, 2021 | doi:10.1163/27725650-01010007 the italian review of international and comparative law 1 (2021) 132-145 Downloaded from Brill.com11/05/2021 08:06:14PM via free access


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Key Passages from the Ruling* Para. 18.6. This judgment does not concern the consistency of a system that accepts differences in the treatment of children whose factual circumstances are entirely similar. On the contrary, its purpose is solely to review the compatibility with the principles of international public order of a foreign full adoption order establishing the status as parents of a male homosexual couple.
Para. 19. By way of conclusion, based on an examination of the most recent case law of the Corte Costituzionale and the Corte di Cassazione, it is not possible to find that the prerequisites for prospective parents' eligibility for full adoption laid down by Article 6 of Law No. 184 of 1983 and Article 1(20) of Law No. 76 of 2016 form part of the principles of international public order that may establish a limit to the recognition of the foreign order at issue in these proceedings. As noted in the sections immediately above, the prohibitions on access to medically assisted procreation, which likewise cannot be traced back to principles of international public order, are also of no consequence for the recognition exclusively of status as adoptive parents at issue in these proceedings. Within the legal order, principles derived from constitutional law coexist alongside those derived from the treaty law. The latter are clearly superior to and pre-eminent over the former, both in terms of their status as inviolable human rights as well as the scale on which they are endorsed, which is a defining feature of such rights.
Para. 19.1. These include first of all, as mentioned above, the principle of the child's best interest within decisions that impinge upon his or her rights to an identity and to emotional, relational and family stability as provided for under Article  Para. 19.2. Secondly, they also include the principle of the equal treatment of all children, whether born within marriage, outside marriage, or adopted, the constitutional basis for which is Articles 3 and 31 of the Constitution, and which was reiterated by the recent reform of the law on filiation (Law No. 219 * The translation in English is by the author of the note. In this regard it is necessary to note, specifically in relation to adoptive filiation (which is currently subdivided into full adoption and adoption in special circumstances), the changes made to Article 74 of the Civil Code. This Article now provides for one single undifferentiated bond of parentage resulting from status as a child, with the sole exception applicable in relation to the adoption of adults. It has thus given rise to doubts within the literature concerning the constitutionality of the retention within our legal system of different rules for different types of adoptive parentage. Para. 19.3. The panorama of intangible principles governing protection for status as a child, a core defining feature of which is the objective of avoiding any discrimination within the legal rules establishing protection for children, is completed by the consideration that the current understanding of social parentage is more variegated than the appellant asserts in his argumentation. (…) An inevitable consequence of the strong promotion within the case law of the Corte Costituzionale, supranational courts and the Corte di Cassazione of a national legal regime governing eligibility for social parentage that is less restrictive and closer to the shared evolution of relational and parent-child models is that, in terms of the principles of international public order, the restriction limiting eligibility for full adoption to married heterosexual couples as laid down in Article 6 no longer applies (…).The marital bond provided for under Article 29 of the Constitution is the model of family relationship that, under the current state of national law, provides the highest level of legal protection. However, as far as parental status is concerned, above all following the reform of the law on filiation, it is no longer the sole model, or indeed the model deemed to be exclusively the most suited, for the birth and upbringing of children. Consequently, it must be concluded that it cannot constitute a limit on the recognition of the effects of an order recognising as adoptive parents a homosexual couple, who have moreover contracted marriage in the United States of America (US). bond is the model of family relationship that provides the highest level of legal protection. However, as far as parental status is concerned, following the reform of the law on filiation, it is no longer the sole model, or indeed the model deemed to be exclusively the most suited for the birth and upbringing of children. Consequently, it must be concluded that it cannot constitute a limit to the recognition of the effects of an order recognising as adoptive parents a homosexual couple, who have moreover contracted marriage in the USA.

The Ban on Surrogate Motherhood Under Italian Law No. 40/2004 and its Effects on the Italian Case Law Regarding Public Policy
The Judgment under review concerned two much-debated issues, namely whether to allow the recognition of a foreign adoption order issued to a same-sex couple and whether this can be done in relation to a child born to a tonolo The Italian Review of International and Comparative Law 1 (2021) 132-145 surrogate mother. Italian law does not allow surrogate motherhood, admitting only the recourse to medically assisted procreation (map) techniques by married or cohabiting adult couples of the opposite sex, provided that they are of potentially fertile age.1 Although Law No. 76/2016 on registered partnerships for same-sex couples establishes a legal regime for such partnerships, that is largely comparable to that applicable to married heterosexual couples, it does not extend to registered parties the rules on filiation and adoption as applicable to married couples. As regards specifically adoption, Law No. 76/2016 in fact leaves the existing rules unchanged.2 The reasoning followed by the Sezioni Unite Civili della Corte di Cassazione in recognising the foreign adoption order issued to a same-sex-couple is based essentially on the following reasons.
Firstly, the Court resolved any doubts concerning its jurisdiction and confirmed the applicability to the case of Articles 64, 65 and 66 of Law No. 218/95, as recalled by Article 41(1). In doing so, it excluded the jurisdiction of the Tribunale dei Minorenni on the assumption that the case under review did not concern international adoption and hence that the rules concerning this issue were not applicable: the applicants were US nationals resident in the US, who had adopted a child, also a US national, born in that country. Thus, since one of the applicants did not fulfil the conditions laid down by Article 29-bis (1) and (2) and Article 36(4) of Law No. 184/1983,3 the rules on international adoption did not apply as that rule requires that both of the prospective adoptive parents must be Italians resident abroad, or alternatively foreign nationals resident in Italy. Consequently, the procedure applicable in the case was that provided for under Article 67 of Law No. 218/95. Secondly, the Court focused on the recent evolution in the notion of public policy, and specifically the notion of international public policy,4 as a tool aimed at preserving the internal harmony of the domestic legal order when , and, in this regard, scholarship has highlighted the need to apply the public policy exception only after evaluating the effects that would result from the application of the foreign adoption order.5 In this case, the Court held that the need to review the compatibility of the foreign order with public policy, understood not as a consideration of its compliance with specific internal rules, but rather as a means to ensure protection for parental relationships, flowed from a fundamental right enshrined in the common framework outlined by the Italian Constitution, the EU Charter of Fundamental Rights and the European Convention on Human Rights (echr). In this specific case, the assessment of the effects of the foreign order was carried out, the Court evaluating all the circumstances surrounding the order. The Court stressed that the foreign order had been adopted after "an investigation has been ordered and carried out and the written report of that investigation had been filed with the Court, as required under national law". The consent to adoption of the biological parents of the children, as expressed within the foreign adoption procedure, is highlighted in the Judgment under review as a means of establishing that the foreign adoption order did not violate the Italian ban on surrogacy, or the restrictions imposed by Italian law on map in relation to same-sex couples, as the focus of the Court's evaluation was the foreign order, and not the underlying circumstances. principle of the best interest of the child, considering the fundamental right to identity as proclaimed in the Italian Constitution and in a number of international treaties. Stepping back from the judgments issued by the ECtHR,6 the Court underscored the variety of different adoptive parenting models, which share the aim of ensuring affective continuity within children's family relationships. More specifically, the Court recalled case No. 14007/2018 concerning the recognition of the cross-adoption of the children of two French women married in France and living in Italy, who gave birth to the children after undergoing map procedures and through cross-adoption (known as "stepchild adoption") had both became the parents of the children.7

The New Reading of Public Policy Exception Established by the Sezioni Unite Civili della Corte di Cassazione
The public policy exception is highlighted in a very original way in the ruling under discussion, considering the interplay between formal and substantive factors in this respect.
Recalling the case law of the ECtHR,8 the Corte di Cassazione noted that the recognition of a foreign adoption order is not incompatible with public policy, even if that order has been issued to two men. This is because there is no fundamental principle of the Italian legal system that prohibits same sex couples from being parents, and also due to the marked evolution that now allows same-sex couples to foster or adopt a child jointly in many countries, or that Hammje, "Droits fondamentaux et ordre public", in Revue critique de droit international privé, 1997, pp. 1 -31; Bucher, "L'ordre public et le but social des lois en droit international privé", rcadi, 1993 (239), pp. 9 -116; more recently, Contaldi, "Ordine pubblico", in Baratta  allows women in lesbian relationships to have children by medically assisted insemination, and/or that provides for joint parental status and/or responsibilities if a child is born to a woman in a lesbian relationship. The Court's reasoning also appears to be based on the fundamental role of the "social reality" of the ensuing relationship9 -or the nature of the interests at stake.10 This is in spite of the fact that the case law referred to the ECtHR seems reluctant to state whether the right to respect for private and family life, enshrined in Article 8 of the echr, entails a right to the recognition of parentage established abroad in cases involving surrogacy and to identify the principles required to develop continuity of family status. In fact, within the reasoning of the ECtHR, the mechanism for recognising the right for private life of children born by surrogacy does not involve the recognition of the principle of continuity of family status but rather the adoption by the prospective, non-biological parent.
The solution now reached by the Corte di Cassazione in the judgment under review represents one small step forward along the difficult path towards reconciliation with family status derived from new technologies.11 In the judgment under review, the Sezioni Unite Civili della Corte di Cassazione overcame the problems associated with the adoption order's As outlined in the case law of the ECtHR, e.g. Mennesson v. France, cit. supra note 8, para. 80 (emphasis added). 10 As stated by the ECtHR in Genovese v. Malta, Application No. 53124/09, Judgment of 11 October 2011, para. 33 (emphasis added), recalling the best interest of the child in relation to the right to personal identity. 11 In recent decades, uncertainty has arisen in this field in some States, as a result of a combination of changing family patterns and advances in medical science. This has given rise to a number of legal developments across Countries, including the law on parentage. potential contrast with public policy owing to the involvement of a surrogate parent in three ways. First of all, it detached the adoption order from the underlying surrogacy, applying an extremely narrow concept of public policy very similar to that developed by the Corte di Cassazione in 2016.12 According to this view, public policy is construed as a narrow limit and is restricted to principles relating to the protection of fundamental rights enshrined in the Italian Constitution as well as in international treaties and EU law.13 The renewed reference to this notion is rather surprising following the ruling by the Sezioni Unite Civili della Corte di Cassazione that overruled the different notion of public policy in 2019,14 holding that a foreign order establishing a bond of filiation between a child born by surrogacy and the putative father (the same-sex spouse of the biological father) could not be considered to be incompatible with public policy as codified not only in the Italian Constitution or in international treaties, but also in the national rules concerning map in Italy.15 supra note 4. However, in this case, the bound of filiation between the child and the two women, claiming to be recognized for the purposes of the Italian civil status records as his mothers, resulted from a certificate of birth delivered by a Spanish official in accordance with the rules of Spanish law. The Corte d' Appello di Torino, whose decision had been appealed before the Corte di Cassazione, held Spanish law as applicable to the establishment of filiation in the circumstances of the case, since, whereas the two supposed mothers were Italian and Spanish nationals respectively, the child was born by the Spanish woman and was, accordingly, to be considered as a Spanish national himself. At the same time, since, pursuant to Spanish law, applicable pursuant to Article 33 of the Italian Law No. 218/1995 mentioned above, the child was to be considered as the son of both women, he possessed Italian nationality as well, something which justified the registration of the Spanish birth certificate in the Italian civil status records. 13 This view is supported by several scholars, see: Tonolo, "L'evoluzione dei rapporti di filiazione e la riconoscibilità dello status da essi derivante tra ordine pubblico e superiore interesse del minore", Rivista di diritto internazionale, 2017, p. 1070 ff., p. 1090 f.; Salerno, "La costituzionalizzazione dell'ordine pubblico internazionale", Rivista di diritto internazionale privato e processuale, 2018, p. 259 ff., p. 277 ff. Secondly, the Court assumed that any prohibition of the parental projects of same-sex couples cannot override the best interest of the child, as was outlined by the Corte Costituzionale in its interpretative ruling concerning Article 263 of the Civil Code, along with the stated need that the biological parent may decline to recognise the biological child in cases involving both heterologous fertilisation as well as surrogacy, balancing the favor veritatis against the overriding interest of the child.16 This assumption was founded, in the judgment under review, on an interesting interpretation of the case law of the Corte Costituzionale. The Sezioni Unite Civili della Corte di Cassazione held that Law no. 76/2016 does not provide for the extension to the parties to a registered partnership of the rules concerning filiation and adoption, as applicable to spouses. However, the Sezioni Unite Civili della Corte di Cassazione held that Article 20, which provides that Law No. 76/2016 is without prejudice to the existing rules on adoption, cannot now be construed as a ban on adoption by same-sex couples, even where the adopted child was born to a surrogate mother. It reached this conclusion in the light of the evolution in the case law of the registration of a foreign birth certificate required by a same-sex couple in order to assert that the principles laid down by the Law No. 76/2016 -even though entirely consistent with Article 3 of the Italian Constitution -are not fundamental principles because they are rooted in a political view that is not universally shared. The same reasoning was discerned by the Sezioni Unite Civili della Corte di Cassazione within judgment No. 230/2020 of the Corte Costituzionale 21 in order to affirm that the ban on the parental projects of same-sex couples provided for under Law No. 40/2004 is not a "founding principle". 22 Thirdly, the Court considered the aspect of the fundamental rights of the child, whose very existence is a consequence of the implementation of the right to parenthood. The centrality of the child is, moreover, also consistent with the recent Italian reform of the law on filiation,23 which introduces the principle of continuity of status, thereby highlighting the child's interest in maintaining a regular personal relationship and direct contact with both parents, which is generally required under international treaties and European law. In cases involving the recognition of a foreign birth certificate, continuity of status of the child must be assured, subject only to the public policy exception represented by the Italian ban on surrogacy,24 also because such cases usually involve a long-term parental relationship, whereas the registration of a national birth certificate is dependent upon the biological ties between the child and its parents, in keeping with a "different normative paradigm".25 In these cases, the Sezioni Unite Civili della Corte di Cassazione recalled the institute of "adoption in special circumstances" provided for under Article 44 of Italian Law No. 184/1983, whereby an individual may apply for this form of adoption in respect of the child of his or her partner, even though this would not formally amount to stepchild adoption stricto sensu.26

Concluding Remarks
Finally, the Sezioni Unite Civili della Corte di Cassazione held that the "panorama of intangible principles governing protection for status as a child, a core defining feature of which is the objective of avoiding any discrimination within the legal rules establishing protection for children, is completed by the consideration that the current understanding of social parentage is more variegated than the appellant asserts in his argumentation.
[…] An inevitable consequence of the strong promotion within the case law of the Corte Costituzionale, supranational courts and the Corte di Cassazione of a national legal regime governing eligibility for social parentage that is less restrictive and closer to the shared evolution of relational and parent-child models is that, in terms of the principles of international public order, the restriction limiting eligibility for full adoption to married heterosexual couples as laid down in Article 6 no longer applies […]. The marital bond provided for under Article 29 of the Constitution is the model of family relationship that, under the current state of national law, provides the highest level of legal protection. However, as far as parental status is concerned, above all following the reform of the law on filiation, it is no longer the sole model, or indeed the model deemed to be exclusively the most suited, for the birth and upbringing of children. Consequently, it must be concluded that it cannot constitute a limit on the recognition of the effects of an order recognising as adoptive parents a homosexual couple, who have moreover contracted marriage in the United States".27 Many problems may arise from the reasoning underlying this judgment, all of which can be essentially related to the argument that a distinction should be drawn between surrogacy and foreign adoption in order to recognise the resulting effects, which could otherwise never arise under Italian law, even