Italy – The Court of Appeal of Trento recognizes the parent-child relationship between two children born to a surrogated mother and a non-biological father

On the 23 February 2017, the Court of Appeal of Trento rendered a landmark order which gave legal effect in Italy to a Canadian decision on the issue of children born from surrogacy to a same-sex couple.

The children, both now aged 6, were born in Canada to a surrogate mother through artificial insemination of the sperm of one of the two men and a donor’s egg.

The two men are Italian nationals and are married under a foreign law (supposedly the Canadian one); the children are Italian-Canadian citizens and the four of them, ever since the twins’ birth, have been living as a family, with the children naming the men as their fathers.

Although only one of the two men is the biological father, a Canadian decision changed the birth certificates and added the name of the non-biological father. Both men are currently mentioned in the birth certificates as fathers. They seeked recognition in Italy of such certificate.

The Court of Appeal of Trento, following the landmark decision of the Italian Corte di Cassazione No 19599/2016 on transcription of a foreign birth certificate mentioning two same-sex parents. In this decision the Supreme Court pointed out the need for Italian courts to put at the forefront the best interest of the child, therefore to acknowledge and preserve the children-parent relationship, independently form the illegality in the Italian legal system (see in particular Law No 40/2004) of the reproductive technique resorted to by the intended parents.

Following such approach, the Court of Appeal in Trento recognized the legal effects in Italy of the Canadian decision pursuing Article 67 of the Italian Statute on Private International Law (No 218/1995), and therefore commanded the civil registrar to amend the twins’ birth certificates and to add the non-biological father as a parent.

The order is extremely significant since, for the first time in Italy, two men – only one of them being the biological father – have been recognized as fathers of two surrogate children. For the first time, indeed, it has recognized a true parenthood and not just an adoption (as in the similar case decided from the Court of Appeal of Rome, which has recognized the stepchild adoption for the non-biological mother, partner to a same-sex relation).

For a first comment on the 2017 order of the Court of Appeal of Trento see “Due padri, i loro figli: la Corte d’Appello di Trento riconosce, per la prima volta, il legame tra i figli e il padre non genetico” by Angelo Schillaci. At the same page, further references for other web references on the same or similar decisions (in Italian).

Francesca Balbi