European Court of Human Rights on June 22, 2023, dismissed appeals regarding the transcription of foreign birth certificates of children conceived through surrogacy. The judges argued that Italy did not violate the applicants’ right to privacy and family life by offering the possibility of legal recognition through adoption. However, the court stressed the importance of the minor’s best interests and urged Italian lawmakers to consider a legal solution for children born through the surrogation procedure. The decision reignited the Italian debate on the matter.
The European Court of Human Rights (ECHR), in rulings dated June 22, 2023, pronounced on the refusal of Italian authorities to transcribe birth records of children born abroad through surrogacy, with Italian parents (three same-sex couples and one heterosexual couple), since gestation for others is prohibited in Italy.
The applicants alleged that the Italian state violated Article 8 of the European Convention on Human Rights, which guarantees the right to respect for family and private life, in conjunction with Article 14 of the same convention. The Italian authorities’ refusal stems from the fact that gestation for others is prohibited by Italian law, and the ECHR judges pointed out that such law was known to the applicants, who nevertheless deliberately ignored it.
The ECHR argued that although Italy does not allow the transcription of the birth certificate for the intended (non-biological) father, it offers the possibility of legal recognition through stepchild adoption. Furthermore, the Court stated that in order to obtain such legal recognition, transcription of the birth certificate for the biological parent is required, which was not the case in the instances in question. Therefore, the Court concluded that Italy did not overstep its wide margin of appreciation in applying ways to establish or recognize parent-child relationships.
Moreover, the Court found that the Italian authorities’ failure to recognize the foreign birth certificates did not significantly affect the applicants’ right to private and family life. However, the Court suggested that the practical difficulties encountered by the applicants could be partially resolved through the recognition of the biological father’s parental bond through a request for partial transcription of the birth certificates.
The Italian Constitutional Court, in ruling No. 33 of 2021, raised hope that the legislature will consider the rights and interests at stake, finding an appropriate solution to protect children born through surrogacy, regulating adoption if necessary.
In conclusion, the ECHR emphasized the importance of the authorities’ recognition of the minors’ bonds with their family to ensure the legal identification of the minors as members of the family in which they live. The Italian Constitutional Court clarified that the issue concerned the interests of the minor, not the parental rights of the child’s caregivers, and that these interests should be balanced and protected.
This article was written by Giuditta De Ricco and Antonia Manicone
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