Decision of the Court of Varese, 8 October 2014

The Judge for preliminary hearings acquitted two spouses who were accused of having declared that they both were the biological parents of two children born in Ukraine from a surrogate mother (a kind of medical assisted procreation prohibited under Italian legislation); and this in order to obtain the recognition in Italy of the children’s birth certificate. The judge remembered the criteria to solve law conflicts in respect of the birth and parental relationship as established under Italian private international law (law No. 218 of 1995). Then, he observed that Parliament did not take yet, any legislative measure for the protection of the rights of children born from a surrogate mother, despite the European Court of Human Rights has clarified through many decisions that in such cases the ‘best interest of the child’ must prevail. The acquittal was therefore pronounced on the grounds that, lacking specific national norms, the conduct of the accused was in line with the ECHR and the New York Convention of 1989, and irrelevant to Italian criminal law.