Twin boys born to a same-sex couple through surrogacy do not have the legal status of brothers, according to an Italian court. The fathers – who both provided sperm – have, however, each been allowed to become the legal parent of their own biological child.
The twins were born in California, where surrogacy is legal. But when their fathers brought them home to Italy a registry office clerk in Milan refused to grant their birth certificates, effectively denying the infants Italian nationality and their fathers parental rights.
Making or advertising surrogacy arrangements is currently illegal under Italian law, and this has presented difficulties for parents registering their children as their own after engaging in surrogacy overseas.
The couple involved in case decided to sue the registry and, on appeal, it was held that since each man's sperm was used to fertilise eggs from the same donor – and one of each was implanted into the surrogate – both men were able to register the birth of their own child and become its legal parent. The twins cannot be recognised as children of the couple, however, and the fathers could not adopt each other's non-biological son since same-sex couples in Italy are not permitted to adopt.
The decision of the court has been welcomed as a 'positive step' by LGBT parenting advocates in the country. Marilena Grassadonia of Famiglie Arcobaleno, a LGBT campaign group, told the Washington Post: 'It's the first time that an Italian court has established that a child's best interest comes before how he was born…. The children's interest was to have a parent.'
Italy has a history of strictly enforcing the ban on surrogacy, sometimes even removing resulting children from their parents if they sought treatment in a poor country and exploitation is perceived. Grassadonia advises families to work with surrogates in countries where 'the rights of surrogates are respected' – 'California and Canada are our preferred destinations,' she said.
The children, now 15 months old, are technically half-brothers as they have the same genetic mother, and they were carried as twins by the same surrogate. Although not legally brothers, both boys have been given the same surname.