Two mothers, child's interest in double surname even after separation

If the two mothers separate, the interest of the child, born through surrogacy, in keeping the name of the intended mother on the birth certificate formed abroad, prevails. A status that cannot, however, be challenged by the grandparents of the genetic mother. The Court of Cassation, in judgement 24369, dismisses as inadmissible the grandparents' appeal against the decision of the Court of Appeal, which, like the Court, had accepted the petition of the mother of intention to keep her name on the birth certificate of the child, born in New York, by surrogate motherhood through the transfer of the biological mother's oocyte, fertilised with male gametes and implanted in the uterus of a third pregnant woman. In the United States, the birth certificate was formed with the indication of the double surname, which was then transcribed in the Italian civil status registers. After the separation of the two women, the genetic mother and the public prosecutor had asked for the birth certificate to be rectified by deleting the name of the mother with no genetic ties to the child, because in the public prosecutor's opinion 'the transcription was vitiated by the discrepancy between the actual state of affairs and that resulting from the birth certificate'.

An application that had been rejected by the appeal judges, who had affirmed the correspondence between the birth certificate drawn up abroad and the transcribed one. The territorial court had recalled the judgment (no. 33 of 2021) in which the Consulta had emphasised the need "for full protection of the child in relation to the bigenitoriality determined by the decision to resort to procreation by means of PGMs and to give legal importance to the bond established by both parties with the child with regard to all the child's care, care and education needs". And the Court of Appeal, again in a ruling that respected the principles of the Charter, had affirmed the prevalence of the minor's interest in keeping the names of the two mothers, even in the face of a domestic law prohibiting recourse to heterologous reproduction.

In the specific case, the Court of Appeal had emphasised the fact that "the two components of the terminated romantic relationship had shared the parental project that led to the birth of the child and had implemented it, by mutual agreement, from November 2017 (birth of the child) until the termination of the relationship culminating in the contestation of the transcription in 2021". And even after the separation, the intention mother had continued to take care of her daughter, requesting to regulate the relationship due to the ostracism of the "biological" mother. The second-instance judges had therefore agreed with the court on the "realisation of the child's best interests only with the preservation of the intentional mother's parental status". A verdict accepted by both the Prosecutor and the 'biological' mother but contested by the latter's parents. For them, however, the Supreme Court denies legal standing. The grandparents could only have intervened in support of the Pm's appeal. Appeal which, specifically, there was no appeal.

The Supreme Court then recalls the judgment of the Unified Sections (12193 of 2019) to emphasise the unsuitability of the rectification procedure - structurally functional to the publicity activity of the civil status registers - to resolve a question of status, which requires, on the contrary, a complex procedure, in full cognisance, in the adversarial process of the parties, in a contentious case concerning the status filiationis.