Rainbow families, because the Milan prosecutor’s office has requested the annulment of the deed of recognition of four children
In the last four years, the prosecutor has received about a hundred reports from the Municipality of Milan and some other municipalities in the hinterland. Every time the mayor Beppe Sala, or a colleague of his, proceeded to “transcribe or register the birth certificate of a child of same-sex parents”, the act was sent to the weak groups department of the public prosecutor’s office directed by Marcello Viola. And every time, in these four years, a file was opened and duly archived, because the regulatory vacuum and the jurisprudential pronouncements left room for action to the magistrates and the first citizens.
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This has also always been the orientation of the judges of the civil section of the Court of Milan, “in the primary interest of the protection of the minor”, to whom those parents have turned in recent years who instead were denied by the mayor of their town , the transcription or registration of the child’s birth certificate. Then, on December 30, 2022, with sentence 38162 of the United Sections of the Cassation, everything changed. And the Milan prosecutor’s office also had to adapt, challenging the four transcripts of birth certificates made by the Municipality of Milan after that date. The hearing before the civil section of the Tribunal will be held on May 4, but the judges will hardly be able to contradict the United Sections at this point.
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What did they establish with the sentence of December 30? While awaiting a legislative intervention, which not even the governments preceding Meloni have completed in recent years and which has already been repeatedly advocated by the Constitutional Court as well, the United Sections have totally restricted the scope of the law, done by tying the hands of the magistrates.
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“Since the practice of surrogacy, whatever the methods of conduct and the aims pursued, offends the dignity of women in an intolerable way – reads the sentence – and deeply undermines human relations, the foreign judicial provision cannot automatically be transcribed and, a fortiori, the original birth certificate, which indicates as the parent of the child the intending parent, who together with the biological father wanted the birth by resorting to subrogation in the foreign country, albeit in accordance with the lex loci”. Thus the Supreme Court believes that “the inescapable need to ensure the child born of surrogacy the same rights as other children born in other conditions” can be guaranteed “through adoption in particular cases”. Therefore, without a specific law, adoption now constitutes the only “instrument which allows for legal recognition, with the attainment of child status, of the de facto bond with the partner of the genetic parent who shared the procreative plan and has participation in taking care of the child from the moment of birth”. The ball then passes to the Juvenile Court which will also act according to its interpretative orientation.
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“Adoption in particular cases, as currently regulated – continues the sentence -, stands out as a potentially suitable instrument for the purpose of ensuring the child born from surrogate motherhood the legal protection required by conventional and constitutional principles, the assessment remaining in any case subjected to the scrutiny of the judge in the concreteness of the individual case”. European Court of Human Rights.
Precisely on the basis of such a stringent discipline, the prosecutor had to present, in the last four cases of transcription, an “appeal for the rectification of the Civil Status act”. With which he asked the Court – reads the text of the appeal which recalls the sentence of the United Sections – to “cancel the act of recognition registered in the registers of the Municipality as contrary to the legal system in force” and to “order the official of Civil Status annotation of the decree in the margin of the annulled deed”.
The Tribunal has not yet pronounced itself, the hearing will be held on May 4th. But the only (and impervious) road to take now seems to be the request for adoption by the “intentional mother or father”.