Surrogacy, doubts about the legitimacy of the ban on recognition of child status

In the name of the centrality of the interests of the child and of the uniqueness of the status of child, the possibility of extending to children born by resorting to gestation for others the rights guaranteed to children of blood relatives must be assessed. A decision that the Cassazione is asking for to be taken in united sections.

Referring to the Supreme Court (Order 5656) was the Supreme Court's First Civil Section. The judges of legitimacy started from the appeal of aheterosexual couple united in marriage against the Court of Appeal's decision to endorse the civil registrar's refusalto deny the transcription of the birth certificate of their son, born in 2020, with the so-called utero for rent. The couple had had access to the heterologous assisted fertilisation technique of gestation by substitution, in full compliance with the law in forcein Ukraine. The husband is the genetic father of the child, the female gamete was provided by an anonymous donor; the embryo, formed in vitro from these gametes, was implanted in a carrier woman.

The Court of Cassation makes a long examination of the evolution of laws and jurisprudence to arrive at affirming the need, which can no longer be avoided, "to search for a solution in the system that, while being based on a rigorous judicial ascertainment and without any automatism, is actually informed by the principle of equality in the regulated models of filiation" . And this is to avoid that, as emphasised by the Constitutional Court in its judgment no. 494/2002, on the rights of incestuous children, the judgement "on the disvalue of the parents' conduct, may be shifted onto the legal sphere of the child born, weakening its protection".

The Court of Cassation recalls that the same Constitutional Court, in its decision 68/2025 on the recognition of the intended mother in a female couple, clarified the limits of adoption in special cases, which also creates a situation of disparity in the exercise of rights between children born from different procreative choices, even if they share a stable and lasting family relationship with the parental couple. For the Court of Cassation, the way forward is the one indicated by the judge of laws, precisely with judgement 494/2002, in which he declared the illegitimacy of Article 278, first paragraph of the Civil Code in the part that excluded the judicial declaration of natural paternity and maternity and the related investigations, prohibiting the recognition of children conceived by persons belonging to the same family circle.

According to the judges, 'the case of a child born of parents between whom there is a relationship of consanguinity is characterised, in fact, by relevant profiles of contiguity with birth through the practice of gestation by substitution'. What the two hypotheses have in common is the criminal relevance of the procreative conduct - for gestation by substitution the universal offence was introduced in Italia with law 169/2024 - and the need, reiterated also by the Constitutional Court (judgment 68/2025) to proceed to a strict balancing of interests in defining the perimeter of the rights of the child born. In both cases - the Court states - there was, and is, the need to ensure the protection of the child's pre-eminent interest, which remains entirely extraneous to the procreative event of which it is the fruit. In the knowledge that children born of gestation for others do not contribute to the conduct deemed offensive".