Decision of the Court of Milan 8 April 2014

In this proceeding, two Italian spouses were charged with the offense of altering the legal status of a child (Article 567.2 of the criminal code), who they had had in India, using a surrogate mother (a form of medically assisted procreation that is prohibited in Italy). The Court of Milan ruled that they were not guilty for this offense, because they had only observed, concerning the birth certificate, the applicable foreign law, i.e. the Indian guidelines on surrogacy, under which only the names of the committing parents, and not that of the surrogate mother, must be reported in the birth certificate. On the contrary, the accused were guilty for the offense of making false statements to a government official (Article 495.2 of criminal code); and this because, at the moment of the transcription in Italy of the certificate, they had omitted to inform the registrar on the surrogacy; a circumstance that would have lead to rejection of the transcription as contrary to public order (Article 18 of the decree of the President of the Republic No. 396 of 2000).