Case law Developments in PIL

The Italian Constitutional Court Asked to Rule on Surrogacy Arrangements and Public Policy

The author of this post is Lorenzo Acconciamessa, a PhD candidate at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By an order of 29 April 2020 the First Chamber of the Italian Supreme Court asked the Italian Constitutional Court to review the constitutional legitimacy of the combined operation of the various Italian rules of private international law governing the (non-)recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent. In 2019, the Joint Chambers of the Supreme Court ruled that, on a proper interpretation of the Italian provisions of private international, such recognition ought to be denied on the ground that it would offend public policy. Put shortly, by its order of April 2020, the First Chamber of the Supreme Court asked the Constitutional Court to assess whether the above provisions, as interpreted by the Joint Chambers in the ruling of 2019, are consistent with the Italian Constitution.

One of the key issues that the Constitutional Court will need to address is whether, and to what extent, international human rights law – notably as expressed in the European Convention on Human Rights (ECHR) and the UN 1989 Convention on the Rights of the Child (CRC) – affects the ability of State’s authorities to refuse the recognition of personal statuses and family relationships on grounds of public policy, thereby precluding the cross-border continuity of the concerned persons’ family status validly and effectively created abroad. Indeed, pursuant to Article 117, paragraph 1, of the Italian Constitution, legislation cannot infringe the international obligations of Italy. In this regard, the Constitutional Court made clear that in the event of a conflict between a piece of domestic legislation and the obligations arising from an international treaty in force for Italy, the former must be considered to be unconstitutional and accordingly declared void.

The Facts

The case concerned a same-sex couple of Italian men who got married in Canada. Their marriage was recognised in Italy as a registered partnership, pursuant to Article 32-bis of the Italian Statute on Private International Law. They subsequently had a child in Canada by resorting to surrogate motherhood. Surrogacy is permitted in Canada, provided that the surrogate mother acts freely and altruistically. The child’s birth certificate had been recognised and recorded in Italy following a decision of the Registrar of the Municipality of Verona. However, the certificate merely mentioned the spouse having a biological bond with the child. The couple seised the Supreme Court of British Columbia to have the birth certificate rectified: they wished that both – the biological and the intended fathers – be referred to as the parents of the child. Their application was successful. The couple then requested that such rectification be recognised in Italy. The Registrar, however, dismissed the request, arguing that recognition would be at variance with the Italian public policy.

Determining the Extent of Public Policy: The Joint Chambers’ Approach

On several occasions, in the past, the Italian Supreme Court restricted public policy to such fundamental values as are shared by the international community. On those grounds, the First Chamber ruled in 2016 that the public policy defence could not be raised to prevent the recognition of a foreign birth certificate attesting the family relationship between a child and his two mothers (the biological one, who carried on the pregnancy, and the genetical one, who had donated the ovum). Public policy, the Court argued, encompasses fundamental principles enshrined in the Italian Constitution as well as in supranational and international human rights instruments by which Italy is bound. The best interests of the child, and his right to personal and social identity, are then to be considered as public policy principles.

According to this view, the mere incompatibility between foreign judgments or public acts and domestic mandatory provisions is not enough to trigger the public policy defence. The same approach was followed by the Court of Appeal of Venice in the case that the Italian Constitutional Court is now called upon to consider. In particular, the Court of Appeal submitted that the fact that Italian law fails to make provision for same-sex marriage and for the attribution, to both the parties of a same-sex couple, of the parental status over a child born through medically assisted procreation, is not, in itself, evidence of the existence of a corresponding public policy principle. The statutes providing for such rules, indeed, are mere expression of the legislature’s political discretion.

However, the State Attorney was not satisfied by the judgment of the Court of Appeal and moved to have the ruling reviewed by the Supreme Court. He argued that the recognition of the Canadian judgment would be in clear breach of the Italian legislation on filiation and medically assisted procreation and, as a consequence, at odds with the public order of Italy. The State Attorney, in particular, invoked a different conception of the public policy, as adopted by the Joint Chambers of the Supreme Court.

And indeed, in 2019 the Joint Chambers remarked that other principles of the forum must be taken into account when determining the scope of public policy, in addition to the principles arising from the Constitution and international instruments. Domestic ordinary legislation may be seen as providing evidence of the fundamental policies of the Italian legal order as well, namely where it implements the principles enshrined in the Constitution.

According to that approach, while the recognition of the family relationship between the child born under a surrogacy arrangement and the intended biological father – through the recording of the birth certificate – is justified by the existence of a biological relationship, the recording of the part of the certificate mentioning as parent the merely intended (non-biological nor genetic) father would be at odds with the Italian (criminal) prohibition of gestational surrogacy arrangements, provided for in Article 12, paragraph 6, of the Italian Statute on Medically Assisted Procreation. Such regulation is deemed by the Joint Chambers to implement constitutional principles concerning the protection of the dignity of the woman and, consequently, to express a public policy principle. In the Joint Sections’ view, such a statement is imposed by an incontestable appreciation of the legislator and by the Constitutional Court’s case-law. As a consequence, judges would be precluded from substituting their own assessment on this matter.

The Joint Chambers added that the protection of the (best) interests of the child, in any case, would be guaranteed by the possibility, for the intended, non biological parent, to resort to the “adoption in particular cases”, pursuant to Article 44, paragraph 1, of the Italian Statute on Adoption. It is a sort of last resort clause allowing for recognition of the emotional bond between the child and the intended parent, when he/she is also the biological parent’s spouse, or, in any case, provided that the relationship has been established as a social reality. The Joint Chambers tried to frame their approach within the European Court of Human Rights’ (ECtHR) doctrine of the margin of appreciation. In particular, they considered that Italy had already complied with ECHR standards by providing full recognition of the child’s relationship with the biological parent. By contrast, in the absence of a biological link with the intended parent, State’s authorities would retain a wide margin of appreciation in choosing the appropriate mechanism for assuring the establishment of a legal relationship comparable (not identical) to natural filiation.

The ECtHR Approach and the Issue of the States’ Margin of Appreciation

The Joint Chambers’ approach is not in itself at odds with the ECHR standards, at least as they were standing at the moment of the 2019 ruling. In the Strasbourg judges’ opinion, the right to personal identity, enshrined in Article 8 ECHR, may imply a right to the cross-border continuity of personal statuses and family relationships created abroad (see Marongiu Buonaiuti and Baratta). And indeed, non-recognition of family statuses validly and effectively created abroad interferes with the right to private and family life. The case at hand fulfils the conditions required under Article 8 ECHR to be entitled to that right: (1) from a formal point of view, the family tie has been validly and legally created before seeking its recognition; (2) from a substantial point of view, the family relationship has been established a social reality, having the child lived with the biological and the intended father since he was born. Moreover, the case involves essential interests of a child, which should be a primary consideration of the State (Neuliger and Shuruck, para. 135).

According to the Court’s well-established case-law, however, if the interference is prescribed in accordance with the law, pursues a legitimate aim and is “necessary in a democratic society” for achieving it, it can be defined as legitimate. Such right might be limited by applying the public policy clause, which is a rule of law aimed at protecting the essential interests (and values) of the State. States enjoy a margin of appreciation in striking such a fair balance between States’ interests and individuals’ rights, that, nevertheless, has been progressively restricted by the ECtHR.

In Negrepontis-Giannisis the Court ruled that the refusal on public policy grounds to recognize an adoption pronounced (in 1984) by a Court in the U.S. between an adult and his uncle, a bishop of the Orthodox Church, violated Article 8. A few years later, the Court asserted in Paradiso and Campanelli that the public policy defence cannot be resorted to as a sort of “charte blanche for any measure, since the State ha[s] an obligation to take the child’s best interests into account irrespective of the nature of the parental link, genetic or otherwise” (para. 80). The Grand Chamber reversed the judgment because it considered that no family relationship existed in the considered case. Therefore, it was unnecessary to determine whether the interference produced by the public policy defence was legitimate, given that there was no right to interfere with.

In two well-known cases concerning the recognition of the family relationship between the child born under a surrogacy arrangement and the biological parent, the ECtHR considered that, even when a State is invoking the international public policy exception, the Court “must, however, verify whether in applying that mechanism … the domestic courts duly took account of the need to strike a fair balance between the interest of the community in ensuring that its members conform to the choice made democratically within that community [prohibiting gestational surrogacy arrangements] and the interest of the applicants – the children’s best interests being paramount – in fully enjoying their rights to respect for their private and family rights” (Labassee, para. 63 and Mennesson, para. 84). It then concluded that the children’s right to personal identity– which involves the right to have their family relationship with the (intended) biological or genetic parent recognized – trumped the State’s interests in protecting those it considers as fundamental values of the fore. According to the Court, the State had to grant the recording of the birth certificate for, at that time, no valid alternatives existed, according to the case-law of the French Court of Cassation, for establishing such a family relationship.

As for the family relationship between the child born under a gestational arrangement and the (merely) intended (non biological nor genetic) parent, the ECtHR expressed its views in the first advisory opinion, delivered, pursuant to Protocol No. 16 to the ECHR, on 10th April 2019. Indeed, following the 2014 judgment in the Mennesson case, the French Cour de Cassation asked the Grand Chamber whether the State had, under the ECHR, an obligation to recognize the family relationship also with respect to the intended parent and whether, in this case, allowing the adoption of the child sufficed. As for the first question, the Court considered that «the general and absolute impossibility of obtaining recognition of the relationship … is incompatible with the child’s best interests» (para. 42). The Court did not distinguish between the fact of the intended mother being or not also the genetic or biological mother As for the second question, the Court stipulated that the case required a fair and appropriate balancing of interests. The invocation of the public policy clause – with the aim of denying direct recognition of the foreign birth certificate or judgment – would be legitimate, in the light of the State’s margin of appreciation, provided that, in any case, adoption or other available proceedings constitute “an effective [alternative] mechanism […], enabling the relationship to be recognized” (para. 54). Such a mechanism, in the Court’s opinion, should be appropriate (guaranteeing an effective recognition of parent-child relationship), rapid, and should allow for “an assessment by the courts of the child’s best interests in the light of the circumstances of the case” (ibidem). Moreover, recognition, whatever the legal instrument resorted to, must intervene not after its effective instauration as a social reality.

The Approach of the Supreme Court’s First Chamber

Although the ECtHR’s advisory opinion is not legally binding, the First Chamber of the Supreme Court in the 2020 Order considered it had to uphold its findings. It then questioned the Joint Chambers arguments concerning the public policy defence by highlighting, inter alia, that it is at odds with the developments in the ECtHR’s case law, at least for two reasons. On the one hand, the Court considered it is illegitimate to qualify the prohibition of surrogacy as public policy, and to make it automatically prevail over the best interests of the child, without an appropriate case-by-case evaluation. For this end, it should be assessed whether effective alternatives exist for upholding the best interests of the child. On the other hand (and consequently), the Italian legal system is currently at odds with the ECHR for the “adoption in particular cases” do not qualify as an effective alternative mechanism, in the abovementioned meaning.

The First Chamber relied on a combination of domestic and international human rights sources to shape the extent of public policy and concluded that the principle of the best interests of the child is part of the Italian international public policy. The application of the public policy exception then requires a balancing of interests between, on one hand, the child’s interest in having his/her relationship with the intended parent recognized and, on the other hand, the State’s interests in avoiding recognition of acts which are perceived as incompatible with domestic fundamental values. According to the First Chamber, such a balancing assessment might lead to the application of a foreign law or the recognition of foreign judgments (or public document) even in violation of domestic (ordinary) rules, provided that the supreme principles of the legal order – in particular, those concerning the fundamental rights and human dignity – are not violated.

The “adoption in particular cases” would not entail such a fair balance, for it does not create a full parent-child relationship, it requires a time-consuming and complex proceeding, exposing the child’s to a period of incertitude, and is conditioned upon the parties’ will. As for the content of the established relationship, it is not comparable to natural filiation, given that it does not involve family bonds between the child and the adopter’s relatives nor succession rights. And while the State’s margin of appreciation under the ECHR, the Supreme Court argued, is wide as regards the means by which family relationships are recognised, it is not as wide as regards the “intensity” and content of such relationships.

For all the above reasons, the First Chamber of the Italian Supreme Court asked the Constitutional Court whether the Joint Sections’ approach is constitutionally legitimate, also, and in particular, in the light of the State’s obligations arising from the ECHR and the CRC.

One should also consider that the “downgrading” of the family relationship through the “adoption in particular cases”, beyond being illegitimate in light of the constitutional principle of the unity of the status filiationis irrespective of the modality and circumstances of the child’s conception and birth, would also infringe the standards that have been recently clarified by the ECtHR.

Indeed, two months after the order of the First Chamber the ECtHR delivered its judgment in D. v. France. The Court implicitly confirmed the necessity of a full legal recognition of the intended parent-child relationship, although it admitted that the methods for achieving that aim can be determined by the State in the exercise of its margin of appreciation. It means that such recognition must not necessarily be achieved through the recording of the birth certificate, provided that the State guarantees and effective and rapid recognition. The ECtHR indeed concluded that the refusal to record the birth certificate of a child born in Ukraine through a gestational arrangement as long as it mentioned the intended mother – who was also the genetic mother – as the legal mother, did not violate Article 8 ECHR. In the Court’s reasoning, the French Cour de Cassation had already confirmed possibility for the (intended) mother to adopt her spouse’s child – for the birth certificate had been recorded in respect of the intended biological father – by way of full adoption. In the Court’s view, that possibility sufficed in order to establish an effective legal parent-child relationship. And indeed, full adoption is pronounced through a rapid proceeding (para. 67) and produces « des effets de même nature que la transcription de l’acte de naissance étranger s’agissant de la reconnaissance du lien de filiation entre l’enfant et la mère d’intention » (para. 66). The case seems then to confirm, a contrario, the Italian First Chamber’s argument: the denial to record the birth certificate is legitimate as long as an alternative mechanism enabling the establishment of a full parent-child relationship exist. Therefore, in Italy, where full adoption is not allowed in the same circumstances, the recording of the birth certificate seems the last valid alternative.

Thoughts and Perspectives

The approach of the First Chamber is commendable from an inter-systemic point of view, for it gives due relevance to the ECtHR approach. In this regard, one should also consider that France already complied with the ECtHR recommendation, given that the intended parent can resort to full adoption. Moreover, in the Mennesson case the Court de Cassation finally allowed the recognition of the parent-child relationship through the recording the foreign birth certificate which mentioned the intended mother as the legal mother (see Arrêt n. 648 P+B+R+I). Given the circumstances of the case, in fact, the Court considered that, following 15 years of judicial proceedings, the best interests of the child required an immediate recognition of the relationship, without imposing to the intended mother the institution of an adoption proceeding.

However, it is unlikely that the Italian Constitutional Court will conclude that non-recognition amounts to a violation of the Constitution. In fact, the Court itself ruled in the past that gestational arrangements violate the woman’s dignity and that, in any case, the adoption in particular cases is an adequate alternative to the (full) recognition of the parent-child relationship (Judgment No. 272 of 2017). It has also ruled against same-sex filiation through medically assisted procreation (Judgment No. 221 of 2019).

The relevant issue will thus concern the parameter of constitutionality arising from Article 117 of the Italian Constitution. Pursuant to that provision, as interpreted by the Constitutional Court since the twin Judgments Nos 348 and 349 of 2007, the legitimacy of ordinary legislation is also assessed against such international treaties as are in force for Italy. The Constitutional Court is then, first of all, called to assess whether the developments in the ECtHR’s case-law have already restricted the State’s margin of appreciation in respect of the recognition of the family relationship between the child born abroad under a surrogacy arrangement and the intended parent.

However, the late approach of the Constitutional Court has mitigated to idea of the prevalence of international principles over national ones (Judgment No. 269 of 2017) and has considerably impacted the extent of the binding nature of ECtHR’s judgments for national judges (Judgment No. 49 of 2015). It is then possible that the Constitutional Court will stipulate that the Constitution prevails over those international obligations. In fact, should the Constitutional Court conclude that the absence of suitable alternatives actually precludes Italian authorities, in the light of the ECHR, from invoking the public policy clause, it is also possible that the constitutional judges will invoke the doctrine of the “counter-limits”, although that doctrine, as for now, has been invoked only in relation to customary international law and European Union law. In particular, it has been invoked by the Constitutional Court (Judgment No. 238 of 2014), with respect to the dispute between Italy and Germany which arose when the Italian Supreme Court ruled that Germany was not entitled to immunity from Italian jurisdiction in civil proceedings where the claimants pleaded redress for serious human rights violations perpetrated by the Third Reich in Italy during World War II. The Constitutional Court concluded that respect for international obligations of the State – namely, the customary rule on State immunity as well as the judgment of the International Court of Justice which had condemned Italy to uphold such rule – could not extent to the point of infringing the “supreme” principles enshrined in the Constitution.

In the present case, there is the possibility that the Constitutional Court will conclude that the prohibition of surrogacy arrangements actually implements fundamental constitutional principles that cannot be trumped by ECHR obligations. And given that treaty provision, by definition, must respect constitutional provisions, the Court could also come to the same conclusion without invoking the counter-limits doctrine.

Should the Constitutional Court reject, for that or other reasons, the referral, the First Chamber would be obliged to apply the current interpretation of the public order defence, as stipulated by the Joint Chambers. In this case, the couple might then apply to the ECtHR, seeking a declaration that Italy violated Article 8 ECHR.

In conclusion, while the First Chamber is trying to engage in a dialogue with the ECtHR and to uphold its findings in the Italian legal order, the case also prospects the possibility of a direct clash between the European Court of Human Rights and the Italian Constitutional Court, concerning a very sensitive and ethical issue. Given that it is quite unlikely that the Parliament would opt for a reform of the legislation to comply with the ECHR standards, the Constitutional judgement will decide whether Italy will be in a systemic and persistent situation of breaching the ECHR.

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