On 16 March 2023, the Italian Senate gave a negative opinion pursuant to Art. 6 of Protocol No. 2 of the Lisbon Treaty to the proposal for a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood.
This initiative was identified by the European Commission as a key action in the EU Strategy on the rights of the child and in the EU LGBTIQ Equality Strategy. Also, according to the Explanatory Memorandum pursued by the European Commission and accompanying the proposal, the objective of the initiative is to strengthen the protection of the fundamental rights and other rights of children in cross-border situations, including their right to an identity, to non-discrimination and to a private and family life, taking the best interests of the child as a primary consideration. However, the definition and possible declinations of a multi-faceted concept as parenthood are different within the EU Member States, and it is not a surprise that, in light of the result of the relatively recent Italian elections that favoured parties with more traditional views with regards to family and parenthood, such a proposal encountered a certain degree of opposition from the Italian legislator.
The reason behind the negative opinion issued is one of the key aspects set out by the regulation, by which the parenthood established in an EU Member State should be recognised in all the other Member States, without any special procedure.
According to the resolution approved by the Senate, the proposal would infringe the subsidiarity and proportionality principles, touching upon national competences which do not fall within the EU remit and would prevent a ‘general application’ of the public policy exception as a ground for refusal of the recognition of a certificate of parenthood in cases concerning intended parents of a surrogate child.
The resolution also stresses that in Italy all forms of surrogacy are forbidden by law and that the principle of the best interest of the child is already entrenched in a recent judgment of the Grand Chamer of the Corte di Cassazione (the Italian Supreme Court), n. 38162 of 30 december 2022. In this judgment the Corte di Cassazione established that the only mean available in the Italian legal order to recognize the filiation link established abroad is to go through the ‘adozione in casi particolari’ (adoption in special cases), a judicial proceeding which, once instituted, allows the social parent to formally adopt the child.
The Senate’s resolution gave rise to heated debates about the rights of children born from surrogacy and those of same-sex parents, with strong reaction from civil society as well as public officers, which in many cases continue to provide enrolment of birth certificate.
You can find here the Senate Resolution and any other documents about the parliamentary process of the proposal in Italy. At the moment, a translation in English is not yet available.
Alessia Voinich (postdoctoral researcher in EU Law at the University of Padua).
The opinions expressed in this blog represent the position of the author and not the one of the FAMIMOVE team.
Photo credit Freepik
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