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X & Y v. Ministero dell’Interno


IDENTIFICACIÓN DEL CASO

TAGS

INSTRUCCIONES


IDENTIFICACIÓN DEL CASO: X & Y v. Ministero dell’Interno (dar click aquí)


TAGS

#Maternidad

#Maternisad subrogada

#Filiación

#Reconocimiento de actas de nacimiento extranjeras

#Adquisición de la nacioalidad

#Matrimonio del mismo sexo

#Orden público de derecho internacional privado

#Interés superior del menor


INSTRUCCIONES


Italian Supreme Court Rules on Public Policy Regarding Same-Sex Families

On September 30, 2016 the Italian Supreme Court of Cassation (Corte di Cassazione) released a pivotal ruling regarding same-sex couples who decide to access medically assisted procreation (MAP) procedures abroad and subsequently seek recognition of their children’s birth certificates in Italy (No. 19599/2016, X & Y v. Ministero dell’Interno). Its importance lies in the circumstance that it is the first time for an Italian court to set such a comprehensive and pioneering analysis of the concept of public policy (ordre public, ordine pubblico) in private international law. 

The case brought before the Court arose from the request, introduced by a lesbian couple to the City of Turin, to obtain the recognition of their child’s birth certificate issued by the Spanish registry office of his place of birth. The couple – an Italian citizen and a Spanish one – married in 2009 in Barcelona, Spain (where same-sex marriage is legal pursuant to Law No. 13/2005 of July 1, 2005, Amending the Civil Code Regarding the Right to Marry), and in 2011 conceived a child whom Spanish law qualified as both women’s child, as mentioned in his birth certificate. In this regard, Sec. 7(3) of Law No. 14/2006 of May 26, 2006 on the Techniques of Assisted Human Reproduction provides that the wife of the woman who gave birth to a child may consent to the establishment of the latter’s parenthood. In the case at stake, the Spanish mother carried to term as a result of an egg furnished by her wife and the sperm of an anonymous donor.

In contrast with this background, Italian law not only does not recognize same-sex marriage – even if the country has very recently enacted a law on same-sex civil unions, the Law No. 76 of May 20, 2016, reported [2016] LGBT LAW NOTES 226 – but it also limits access to MAP in Italy to couples of the opposite sex (Art. 5 of Law No. 40 of Feb. 19, 2004 on Medically Assisted Procreation) and only recently allowed heterologous MAP (Cons. Ct., judgm. No. 162 of June 10, 2014).

Moreover, the general rule in Italy is that the woman who gave birth to the child is “assumed to be the mother” (mater semper certa: Art. 269(3) of the Civil Code). Since this rule applies in all respects, under Italian law the Spanish woman is the only mother to the child and the latter is prevented from legally acquiring the citizenship of his Italian mother, with whom he is nevertheless biologically linked.

The reasons underlying the two women’s request to the City of Turin are therefore obvious: the recognition of the filiation relationship and the registration of the Spanish birth certificate were essential to their family because after separation they intended to share custody of the child and did not want Italian law to impair the Italian mother’s rights and obligations towards him.

Finding that the principles expressed in Italian laws were of public policy, at first the City of Turin denied the request, claiming that the certificate, as long as it indicated both women as mothers, violated Italian public policy. The women subsequently filed an appeal.

While the Tribunal of Turin confirmed the City’s conclusions and therefore rejected the petitioners’ request (X & Y v. Comune di Torino, Decree Oct. 21, 2013), the Court of Appeals reversed, ordering to proceed with the registration of the Spanish certificate (X & Y v. Comune di Torino , Decree Oct. 29, 2014).

After noticing that Italian private international law provisions establish filiation according to the national law of the child at the time of birth (Sec. 33 of Law No. 218 of May 30, 1995, Reforming the Italian System of Private International Law) and that all foreign judgments and acts regarding family relationships must be automatically recognized in Italy provided that they are rendered by the courts of the State of citizenship of the person concerned (Sec. 65 of same Law), the Court of Appeals found that the child was necessarily both women’s child and that, as a consequence of the fact that both Spanish and Italian law follow the jure sanguinis principle, he had acquired both Spanish and the Italian citizenship.

Furthermore, regarding the public policy exception the Court of Appeals excluded that public policy could bar the registration of the birth certificate, as non-recognition would impair the child’s best interest, in particular his fundamental right to personal identity, including filiation and citizenship. Notably, here the Court quotes the case law of the European Court of Human Rights concerning surrogacy, even if the mother who gave birth to the child was not a surrogate in any sense (see the rulings of June 26, 2014, No. 65192/11, Mennesson v. France , and No. 65941/11, Labassee v. France , Eur. Ct. Hum. Rgts.; in this regard see Esther Erlings, To Recognize of Not to Recognize–That is the Question , 17 EUR. J.L. REF. 257, 268 (2015)).

In its ruling the Supreme Court affirmed the judgment of the Court of Appeals and examined in depth the concept of public policy in Italian private international law

First, the Court noticed that in contrast with the past, today’s public policy cannot be severed from the system of protection of fundamental rights embedded in the Italian Constitution and in supranational laws such as the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Second, the Court warned that not all conflicts of laws can be regarded as relevant and qualified as of public policy, as one should look not at the differences between potentially competing legislation but rather at “the effects” that the foreign legislation that is deemed applicable has – and not simply may have – on the Italian legal order. Public policy enters into play when there is – the Supreme Court says – “a potential aggression to the essential values of the Italian legal order.” It is here that public policy definitely plays a role, as the bunch of “fundamental principles that bind the legislator.” In other words, where the Italian legislator has full discretion in whether and how to legislate in a certain field, public policy can neither operate nor bar the application of foreign law.

Now, the Italian Constitution says nothing concerning the establishment of motherhood or parenthood, or the regulation of MAPP. As a consequence, in all these fields the foreign laws which are applicable as a result of Italian private international law do not automatically conflict with public policy and can therefore receive full application in Italy. This interpretation is identical to one recently adopted by the Austrian Constitutional Court in its decisions concerning foreign surrogacy, which focused on the legislator’s constitutional obligations to define public policy (Austrian Const. Ct., judgm. B 99/12 and B 100/12, Oct. 11, 2012; B 13/11, Dec. 14, 2011).

Another principle that is embedded in public policy – when a child is involved, as in the present case – is the best interest of the child. It is such interest that according to the Supreme Court commands “the cross-border continuity of the child’s personal and parental status,” which is why in the case at issue both mothers were granted parenthood and the birth certificate received full recognition in Italy.

The consequences of these statements are very important for the status of same-sex families in the Italian legal setting, opening the door to the recognition of family status acquired in foreign countries: from now on, all same-sex parents and families formed abroad can receive the proper recognition under Italian law. In fact “family” – the Supreme Court concluded – “is more and more conceived as the community of affection, centered on the concrete relationships that are created among its members: the law has the duty to protect these relationships and to balance the conflicting interests existing herein, having always as a reference the best interest of the child.” – Matteo M. Winkler

Matteo M. Winkler is an Assistant Professor in the Tax & Law Department at HEC Paris.”

Winkler, Matteo M. Italian Supreme Court Rules on Public Policy Regarding Same-Sex Families. LGBT Law Notes, November 2016



"The parent-child relationship between two children born from surrogacy and the two men indicated as their fathers in birth certificates / Il rapporto di filiazione tra due minori nati da maternità surrogata e i due uomini indicati come padri nei certificati di nascita

1 marzo 2017 

by Ester di Napoli

By an order of 23 February 2017, the Court of Appeal of Trento recognised the parent-child relationship of two twins born from foreign surrogacy with a same-sex couple. 

One of the two men who formed the couple was the biological father of the twins, but a foreign judgment (the country of origin of which does not appear on the available copy of the order) had subsequently changed the birth certificates, indicating both men as the fathers of the children.

The couple had first tried to register the birth certificates in Italy, but their request had been denied by the civil registrar on the ground that it was at odds with the Italian public policy.

Seised of the recognition of the foreign judgment, the Court of Trento relied on a recent judgment of the Italian Supreme Court (judgment No 19599/2016, on the recognition of a parent-child relationship between a child born through medically assisted procreation and the two women indicated as the child’s mothers in a birth certificate issued in Spain), to assert that a child’s right to the continuity of the status lawfully acquired abroad is grounded, inter alia, on Article 33 of the Italian Statute on Private International Law (No 218 of 1995), regarding filiation.

This right, the Court added, is also implicitly enshrined in Article 8(1) of the UN Convention on the rights of the child, pursuant to which States Parties have undertaken ‘to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference’.

The Court further stated that despite surrogacy is prohibited in Italy under Law No 40 of 2004 on medical assisted procreation, that prohibition is not enough to deny the recognition of such foreign measures, issued in accordance with the law applicable in the country of origin, as recognise a parent-child relationship between the non-biological parent and the children born from surrogacy in the framework of a parental project. 

Actually, according to the Court, ‘the consequences of the violation of the rules set forth in Law No 40 of 2014 committed by adults should not fall back on the new born’.


Con ordinanza depositata il 23 febbraio 2017, la Corte d’appello di Trento ha riconosciuto lo status di figlio a due gemelli nati da un contratto di maternità surrogata all’estero stipulato da una coppia di persone dello stesso sesso.

Si evince dalla decisione che uno dei due uomini era il genitore biologico dei gemelli e che un provvedimento straniero (gli omissis che compaiono nel testo attualmente disponibile dell’ordinanza impediscono di identificare lo Stato d’origine) aveva successivamente modificato gli atti di nascita dei minori in modo che entrambi gli uomini risultassero padri dei gemelli.

La coppia aveva dapprima richiesto la trascrizione dei certificati di nascita nei registri dello stato civile, ma l’istanza era stata respinta in ragione della sua contrarietà all’ordine pubblico italiano. Chiamata a pronunciarsi sull’efficacia del provvedimento straniero, la Corte trentina ha fatto leva sui rilievi svolti dalla Cassazione nella sentenza n. 19599/2016 relativa al riconoscimento del rapporto di filiazione tra un minore e le due donne indicate come madri nel relativo atto di nascita, formato in Spagna. Essa ha così rilevato che “il diritto alla continuità [dello status di figlio legittimamente acquisito all’estero] è conseguenza diretta del favor filiationis scolpito [nell’art.] 33 commi 1 e 2 della legge n. 218 [del 1995, di riforma del sistema italiano di diritto internazionale privato] ed [è] implicitamente riconosciuto nell’art. 8 par. 1 della convenzione di New York [sui diritti del fanciullo]”, in virtù del quale gli Stati contraenti si sono impegnati, fra l’altro, a rispettare l’identità, dei minori, compresa la loro nazionalità, il nome e le relazioni familiari, così come riconosciute dalla legge, senza ingerenze illegittime.

La Corte ha poi affermato che il divieto di ricorrere alla maternità surrogata, sancito dalla legge n. 40 del 2004, sulla procreazione medicalmente assistita, non basta a “negare effetti nel nostro ordinamento al provvedimento [straniero] che, in applicazione della legge [del paese d’origine] ha riconosciuto un rapporto di filiazione tra il [genitore non biologico] ed i minori nati facendo ricorso alla maternità surrogata e nell’ambito di un progetto genitoriale”.

Secondo la Corte, infatti, “le conseguenze della violazione delle prescrizioni e dei divieti posti dalla legge n. 40 del 2014 imputabili agli adulti … non possono ricadere su chi è nato”."


di Napoli, Ester. The parent-child relationship between two children born from surrogacy and the two men indicated as their fathers in birth certificates / Il rapporto di filiazione tra due minori nati da maternità surrogata e i due uomini indicati come padri nei certificati di nascita. Aldricus. 1 marzo 2017



Broken Link Reporter


© Fernando Villarreal Gonda 2011