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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