Adoption by same-sex couples: the ruling of the Court of Cassation

In a recent ruling, the United Sections of the Italian Supreme Court addressed the case of a child born abroad through surrogacy, due to the will of a same-sex couple. In this case, one of the men had donated his sperm, which was used to fertilize an egg from a donor. The resulting embryo was then implanted in the uterus of another woman who gave birth to the baby. The couple, both Italian nationals who had married in Canada, requested that the Canadian Supreme Court’s decision that both men should be recognized as parents on the child’s birth certificate be recognized in Italy.

However, the Italian civil registry office rejected their request, arguing that there was already a valid birth certificate and that it was not possible to recognize a foreign decision without similar precedents in Italian law. The couple appealed, and the Venetian Court considered the fundamental right to protect the best interests of the child. The Court of Appeal ruled that the foreign decision should be recognized, and that both men should be recognized as the child’s parents. However, the decision was appealed to the Supreme Court by the Italian Interior Ministry and the mayor of Verona.

The Supreme Court recognized the importance of protecting the child’s legal relationship with those exercising parental responsibility, while also taking into account the legal disincentives against surrogacy. The Court also noted the error made by the Court of Appeal in automatically recognizing the validity of the Canadian decision without considering the individual circumstances of the child.

Furthermore, the Court found that recognizing such a foreign decision would be contrary to Italian law’s public policy principle that prohibits surrogacy. Despite this, the Court ruled that the Canadian decision could be recognized as it was necessary to protect the child’s legal relationship with those who were exercising parental responsibility.

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