A court in Milan on Friday annulled
the transcription into the Italian civil register of the foreign
birth certificate of a child born to a male homosexual couple
through gestational surrogacy carried out abroad, upholding a
request from the public prosecutor's office based on a ruling by
Italy's Supreme Court of cassation last December.
Instead it rejected the prosecutor's request to also annul the
transcription of the recognition of the children of three
lesbian couples, born abroad through assisted fertility, by
their intended mothers, ruling that another procedure involving
removal of the child status is required.
The Milan tribunal annulled the transcription of the birth
certificate pertaining to the child of the gay couple born
through surrogacy, which is illegal in Italy, on grounds that
"it was in violation of the law in force which, by prohibiting
the use of surrogacy, also prohibits the transcription of the
birth certificate in the part where it states that the intended
parent is also the parent".
In their ruling the judges affirmed "that the child's right to
full recognition of the role played by the intended parent" in
the "project aimed at his or her development, upbringing and
education may be recognised through the adoption procedure in
particular cases".
This is in line with a Supreme Court ruling handed down in
December 2022 according to which adoption by the intended parent
rather than the automatic transcription of legal parental status
established abroad is in the best interests of the child.
In March the government instructed city mayors to stop
registering both members of a same-sex couple as the parents of
a child via a procedure based on the transcription into Italian
civil registers of the foreign birth certificates of children
conceived via surrogacy or assisted fertility, which is only
available to heterosexual couples in Italy, citing the Supreme
Court of Cassation ruling
This has led to concern that same-sex parent families will face
multiple practical and legal problems, with only the member of
the couple who is the biological parent of the child registered
as its legal parent.
On Thursday the European Court of Human Rights rejected a series
of appeals against Italy by same-sex couples asking the court to
condemn Rome for no longer permitting the registration of
foreign birth certificates of children born through surrogate
mothers.
In one case, the appeal was filed by a heterosexual couple.
The court said the couples had had the option of adopting their
children, and had not taken it.
The ECHR ruling is a blow against gay couples' fights across
Italy to keep the option of foreign surrogacy alive as
parliament considers a bill filed by the right-wing Brothers of
Italy (FdI) to make surrogacy a "universal crime", meaning that
henceforth couples who come back from abroad with kids had by a
surrogate will be prosecuted.
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