13 February 2017
Post-doctoral fellow at the Fundamental Rights Laboratory, TurinAppeared in BioNews 888
It is not the first time that a court has been called to rule on the recognition of family ties established between a male couple and their twins born from surrogacy abroad. But the recent ruling of the Court of Appeal of Milan (see BioNews 884) has attracted particular interest because of its absurd consequences (1). While recognising the vertical relationships existing between each man and his biological child, the judgment does not recognise the horizontal bond between the children themselves. As a result, despite being referred to as 'twins' by the Court of Appeal, the two children remain legal strangers in Italy.
The background to this case is that the sperm of each partner – A and B – was used to fertilise two different eggs from an anonymous donor, and the resulting two embryos were implanted in the uterus of a surrogate in California. The children – now 15 months old – are therefore biologically related to the same woman – the egg donor – but to different fathers. Following a parental judgment (issued by a court in Ventura, California) that transferred legal rights from the birth mother to the couple, A and B were registered as the legal parents of both children. The couple asked the Ventura registry office for additional certificates recording only the biological father for each child as they feared the Italian registrars would refuse to transcribe a birth certificate indicating two fathers, as surrogacy is illegal in Italy.
Once back in Italy, the couple requested that the short certificates be entered in the civil-status register, but their request was rejected on public policy grounds. Both the registry office and a court of first instance held that 'twins' cannot, by definition, have different fathers. Therefore, they refused to register the foreign acts because they were contrary to the prohibition of surrogacy under Italian law. This refusal was eventually overruled by the Court of Appeal, which considered the recognition of the twin's legal parentage to be in their best interests.
As a first step, the Italian judge clarified the meaning of 'twins'. He argued that, rather than pointing to the children as siblings, the word 'twins' merely referred to the fact that the two children were born at the same time to the same woman. The court went on to discuss the notion of public policy. Echoing a 2016 decision of the Supreme Court of Cassation (2), it held that judges are responsible for ascertaining the foreign act's compatibility with fundamental rights provisions – in particular the child's best interests – rather than with domestic rules. Relying on the European Court of Human Rights rulings in Mennesson and Labassee v France (3), the Italian judge argued that non-recognition would place the two children in a situation of legal uncertainty and would have a detrimental effect on their personal identity, and on their citizenship and inheritance rights, as well as their freedom of movement on the Italian territory. Although unlawful in Italy – the court added – the consequences of surrogacy should not be borne by the resulting children, who have a right to maintain their family status lawfully acquired abroad. In light of these considerations, the court recognised A and B as the legal father of their respective children.
Undoubtedly, this decision has some paradoxical implications. In Italy, the twins – desired and raised by both fathers – each have legal ties with only their sole biological father, even if under Californian law both are children of the couple. Moreover, despite having the same (double) surname, being recognised as twins, living and being raised in the same household as brothers and recognised as such in their country of birth, the two children are strangers to each other under Italian law.
It must be noted, however, that these paradoxes are not attributable to the court's decision but are rather the consequences of the type of request made by the couple. Indeed, A and B each applied for the recognition of their biological child's short birth certificate and, therefore, of their biological tie. Had their request concerned the full birth certificates (indicating both fathers), then the Court of Appeal's decision could be legitimately criticised for limiting recognition to biological links, thus ignoring the value and reality of social parenthood. That was not the case, however, and there is no indication of how the same court would have dealt with that request, had it been submitted. Therefore, as things stand, this ruling ought to be seen as a success as it upholds the recognition of family ties established through surrogacy, regardless of the means of conception and circumstances of birth.
Two major conclusions can be drawn from this case. First, judges cannot work miracles. Their role in filling the gaps created by inadequate provisions is limited. Second, in uncertain terrains like surrogacy and assisted reproductive technology (ART) it might be wiser to strive for progress through incremental steps rather than making greater demands on institutions whose readiness to recognise and regulate ART-created and homosexual families is ambiguous. In Italy and elsewhere, the recognition of legal ties established abroad following surrogacy remains very much dependent on the approach and sensitivity of the individual judge – no uniform pattern of jurisprudence can yet be identified. This explains why A and B – ably assisted by the LGBTI (lesbian, gay, bisexual, trans, and/or intersex) association Rete Lenford – chose to start by asking for registration of each child's biological parentage, rightly envisaging that recognition of their social ties and the relationship between the twins would be the more challenging request.