Decision of the Court of Cassation, VI Criminal Section, No. 48696 of 11 October 2016

The case concerned two Italian spouses, who made recourse to surrogate maternity in Ukraine (this practice is not allowed under Italian legislation on medical assisted procreation), and then applied for the transcription in Italy of the birth certificate of the children delivered by the Ukrainian authorities. After a second instance verdict of acquittal of the two spouses from the criminal offense of altering the legal status of newborn babies, the prosecutor challenged this decision before the Court of Cassation. The Court of Cassation rejected the appeal because evidence had been reached in the proceeding on the merits about the fact that a) the accused had plainly respected the relevant Ukrainian legislation and b) they had made no false statement in Italy in order to obtain the birth certificate’s transcription. The Court further remembered the concept of so-called ‘social parenthood’, as distinguished by that of biological parenthood, in line with the ECHR Court’s interpretation of the right to respect for private and family life, as well as decision No. 162/2014 of the Italian Constitutional Court. Whether the transcription of a birth certificate formed abroad, under the particular circumstances of the case, was contrary to international public order was a further question, which the Court of Cassation has not competence to decide.