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Surrogacy: Recognition of Minors Born Abroad

11 Aug 2023 - Divorce & Family Law - Min Read 5 min
Surrogacy: Recognition of Minors Born Abroad

Surrogacy is a conception practice involving third parties expressly prohibited in Italy by Law No. 40 of 2004. This is the reason why recognizing minors born abroad through surrogacy presents significant challenges.

The draft legislation currently under consideration in the Italian Parliament aims to further strengthen the stance of outright refusal and presents various critical legal aspects.

The decision to resort to surrogacy inevitably raises ethical and legal questions, but what rights could be recognized or denied to a child born abroad through surrogacy?

What is Surrogacy?

Surrogacy is a practice whereby a third-party woman is sought to give birth to one’s own child. The woman provides her uterus and carries the pregnancy to term, after which the child is entrusted to the “intended parents,” who can be single individuals or couples, both heterosexual and homosexual. In the majority of cases, there is a single “intended parent.”

In male same-sex couples, the gametes of one partner (who will be the biological parent) are used together with the egg of a female donor, who is distinct from the surrogate mother. Despite carrying the child in her womb, the surrogate mother does not have any biological ties to the unborn child.

Differences between Surrogacy and Womb Rental

The only conceptual differences between surrogacy and womb rental are in terminology, but in practice, they refer to the same thing. Technically, the accurate term to describe pregnancies “commissioned” to third parties is “Gestational Surrogacy,” or “GPA.” The term “surrogacy” has been borrowed from English with a local addition to refer to it as “maternità surrogata.”

In English, the concept of “maternità” (motherhood) is not taken into account, as the individual carrying the pregnancy for others does not have parental aspirations and often is not even the biological mother of the child, as the gametes (eggs and sperm) of the intended parents are used whenever possible.

 The terminology “maternità surrogata” disregards the intention of the gestational carrier, and the term “utero in affitto” (womb rental) worsens the situation, using a derogatory expression that portrays the entire practice as the commodification of a woman’s body who agrees to carry a pregnancy for others.

Rights of Children Born Abroad through Surrogacy

The rights of children born abroad through surrogacy remain a subject of international debate. Their application can vary based on the country of birth and the national laws of the parents’ countries.

Recognition of Minors Born Abroad through Surrogacy

The recognition of minors born abroad through surrogacy not only varies from country to country but also from city to city.

Some countries automatically recognize the parenthood of the intended parents, while others require judicial or administrative procedures to ensure recognition.

It is crucial to consult legal experts specialized in international and family law to understand the specific procedures and requirements of the country where you intend to recognize a child born through surrogacy.

Surrogacy According to the European Union

The European Commission aims to harmonize international family law rules on parentage at the European level.

The Commission intends to accept the practice of surrogacy if it is conducted by a member state of the European Union.

Following acceptance and transcription in a member state, other states should adapt and ratify, without further analysis, investigations, or procedures, the established parent-child relationship status.

Currently, under EU law, a recognized parent-child relationship in one member state allows access to the territory and the right of residence in other EU countries.

In Europe, succession rights and legal representation rights of a minor should also be recognized, and a “European Certificate of Parentage” could be created, issued by the EU state that has established the parent-child relationship of the minor.

Specifically, the European Commission has presented a Regulation and requested its approval from all member states of the European Union.

Italian Law on Surrogacy

Currently, in Italy, individuals can be prosecuted if surrogacy is carried out within the country.

Law No. 40 of 2004 states: “Anyone who, in any form, engages in, organizes, or advertises the commercialization of gametes or embryos or surrogacy is punishable by imprisonment from three months to two years and a fine ranging from 600,000 to one million euros.”

Since 2004, there have been criticisms of the law, which nonetheless leaves open and interpretable questions regarding the registration of children born through surrogacy in countries where this practice is allowed.

As a result, judges have issued judgments with differing orientations and conflicting positions.

However, the general trend is to favor the adoption of children by the non-biological partner (so-called stepchild adoption).

The proposed legislation in this area aims to strengthen the Italian position by seeking to make the use of surrogacy abroad also prosecutable.

Legal Status of Surrogacy in Different Countries

Surrogacy is prohibited by law or not allowed in some European Union states, China, Mongolia, and parts of North Africa.

 Countries that permit gestational surrogacy, encompassing most of North, Central, and South America, various regions in Asia, including Russia, India, Thailand, and across Oceania, do not consider the woman carrying the pregnancy for others to be the legal mother of the children born through this practice.

In jurisdictions with favorable laws, the “intended” parents have all rights over the offspring.

 In other cases, surrogacy is regulated differently from country to country. Some countries, even if they do not provide for surrogacy, automatically recognize the intended parents as the legal parents of the child born abroad.

De Facto Parents and Intentional Parents

Family law now encompasses new forms of parenthood that do not depend on a formal biological connection, in the best interests of the minors. In the absence of specific legislation, judges are responsible for protecting:

  • De facto parents
  • Intentional parents

De facto parents are those who voluntarily assume parental responsibility, establishing stable emotional bonds with a child comparable to those of a parent, despite lacking any biological relationship with the child.

Their presence in the child’s life, supporting growth and education, is that of a “de facto” rather than a “de jure” parent. To be considered de facto parents, the following criteria must be met:

  • Coexistence with the child;
  • Sustained and lasting interactions;
  • Moral and material support;
  • Assumption of duties and responsibilities.

This applies to individuals in a stable relationship with the biological parent of the child, whether a spouse, cohabiting partner, or civilly united person.

Intentional parents are those who seek a surrogate mother to carry out a pregnancy for them, with the majority intending to raise the child afterward.

Financial Aspect of Surrogacy

Surrogacy is a costly process that demands significant mental and financial resources from intended parents.

Expenses associated with surrogacy include compensation for the surrogate mother, medical expenses, legal fees, and other related costs.

Conclusions

Surrogacy is a topic of ongoing debate that is unlikely to find a unanimous and unified conclusion among EU member states or the rest of the world.

It is more probable that each individual country will adopt specific legislation to address the complex legal, ethical, financial, and emotional aspects associated with surrogacy.

Consulting specialized legal professionals can provide the necessary information to approach this path with caution and understanding.

Should you need a legal advice from international and family law legal experts, do not hesitate to contact the Family Department attorneys within Boccadutri Law Firm.

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Calogero Boccadutri

Calogero Boccadutri is the Managing Partner of Boccadutri International Law Firm. He has trial experience in Forex, Personal Injury and Administrative litigation.



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