The Italian Supreme Court on Surrogacy and Filiation Status Abroad: Towards a New Model?

By order No. 5656/2026, the First Civil Chamber of the Italian Supreme Court referred the case to the First President of the Court for possible assignment to the Joint Chambers (Sezioni Unite) of a question of “particular importance” concerning the recognition in Italy of children born abroad through surrogacy. More specifically, the Court asked whether the legislative model governing the recognition of children born from incestuous relationships may be extended, by interpretation, to children born abroad through gestational surrogacy. Under that model, filiation is not recognised automatically, but only after a judicial assessment aimed at balancing the child’s best interests against the public policy concerns linked to the unlawful nature of the procreative conduct.

Facts of the Case

The case concerned a married heterosexual Italian couple who had recourse to gestational surrogacy in Ukraine, in full compliance with Ukrainian law. The husband was the child’s genetic father, while the oocyte was provided by an anonymous donor and the embryo implanted in a surrogate mother. The child was born in Kyiv in 2020, and the Ukrainian birth certificate designated both members of the couple as parents.

Upon returning to Italy, the applicants sought the transcription of the foreign birth certificate into the Italian civil status register. The registrar refused the request on public policy grounds, considering surrogacy contrary to the principles underlying the Italian legal order. The applicants challenged the refusal. Both the first-instance court and the Court of Appeal of Bari rejected the application.

The Court of Appeal reaffirmed the settled position of the Italian Supreme Court and the Constitutional Court according to which gestational surrogacy is contrary to Italian international public policy because it affects the dignity of women and children. It further held that the child’s interests could be adequately protected through adoption in special cases under Article 44(d) of Law No. 184/1983. This mechanism – often used in Italy in surrogacy cases involving the intended parent lacking a biological link with the child – allows the establishment of a legal parent-child relationship through a judicial adoption procedure. However, unlike direct recognition of filiation status, it does not operate automatically, depends on the initiative and continuing consent of the prospective adoptive parent, and has traditionally produced a more limited legal status than ordinary filiation, in particular because it does not fully replicate the legal effects of filiation as of birth: it requires a constitutive judicial procedure, may be delayed in time, does not automatically arise ex lege, and, at least in its traditional understanding, did not always ensure an immediate and complete alignment with the full set of parental rights and obligations attached to legal parentage from the moment of birth.

The couple subsequently appealed before the Supreme Court.

Reasons for the Decision

The referral order develops a broad reconstruction of the constitutional and supranational framework governing children born through surrogacy. The Supreme Court begins by recalling the established principle according to which children must not bear the consequences of the unlawfulness of their parents’ reproductive choices and must enjoy effective protection of their fundamental rights (paragraphs 7–8). In this regard, the Court relies extensively on Constitutional Court judgment No. 33/2021 and on the case law of the European Court of Human Rights, including Mennesson v France, Labassee v France and the 2023 judgment C. v Italy, emphasising that States enjoy a margin of appreciation regarding the techniques through which filiation is recognised, provided that effective and timely protection is ensured (paragraphs 8–9).

The Court nevertheless questions whether adoption in special cases still constitutes an adequate balancing mechanism after Constitutional Court judgment No. 68/2025 (paragraphs 10–13). In that decision, the Constitutional Court declared partially unconstitutional Article 8 of Law No. 40/2004 insofar as it prevented the intended mother from recognising a child born in Italy following medically assisted reproduction lawfully carried out abroad. Although expressly excluding the extension of automatic recognition to surrogacy cases, the Constitutional Court strongly criticised the inadequacy of adoption in special cases, notably because the child has no procedural standing to initiate the proceedings and remains dependent on the willingness of the intended parent. The Supreme Court interprets that judgment as reinforcing the constitutional principle of the “unity of filiation status” and the equal dignity of all children irrespective of the circumstances of their birth (paragraphs 11–13).

Against this background, the Court turns to the legal regime applicable to children born from incestuous relationships under Articles 251 and 278 of the Civil Code (paragraphs 14–15). Following Constitutional Court judgment No. 494/2002, that regime allows judicial recognition of filiation notwithstanding the criminal unlawfulness of the reproductive conduct, subject to a concrete judicial assessment of the child’s best interests and the absence of prejudice. According to the Supreme Court, this model demonstrates that Italian law already admits forms of non-automatic constitution of filiation status where the generative conduct is criminally sanctioned.

The Court then identifies significant structural similarities between incestuous filiation and gestational surrogacy (paragraphs 16–18). In both cases, the procreative conduct is regarded as unlawful and criminally relevant, while the child remains entirely extraneous to that conduct and merely bears its consequences. The Court expressly invokes Constitutional Court judgment No. 494/2002, according to which children cannot suffer a “perpetual and irremediable capitis deminutio” as a consequence of their parents’ conduct. On this basis, the Supreme Court asks whether the legislative paradigm developed for incestuous filiation may be extended to surrogacy cases in order to ensure a more coherent and effective protection of the child’s rights, while preserving the need for a rigorous judicial balancing against international public policy concerns (paragraphs 17–18.1).

Comment

The order is particularly significant from a private international law perspective. The dispute originates from the cross-border circulation of a personal status lawfully created abroad but regarded as incompatible with the forum State’s international public policy. Italian courts have traditionally addressed this tension through the combination of non-recognition of the foreign birth certificate and subsequent recourse to adoption in special cases. The Supreme Court now openly questions the sustainability of that model.

More broadly, the order reflects a structural tension affecting several European legal systems: how to reconcile domestic public policy objections against surrogacy with the need to ensure continuity of personal status and effective protection of children born abroad. The issue is no longer confined to the traditional opposition between recognition and non-recognition. Rather, the Italian Supreme Court appears to explore the possibility of an intermediate model based on judicial scrutiny of the child’s best interests, capable of avoiding both automatic recognition and absolute denial of status.

The order also highlights the increasing instability generated by the current fragmentation of approaches within Europe concerning parenthood established abroad through assisted reproduction and surrogacy. The same filiation status may be fully recognised in one Member State and denied in another, thereby exposing children to situations of legal uncertainty and discontinuity of status across borders. Significantly, the Supreme Court itself refers to the heterogeneity of practices among Italian civil registrars and public prosecutors.

What this order ultimately reveals is not merely a problem of cross-border recognition, but a deeper conceptual shift within European private international law on parenthood. The traditional binary between recognition and non-recognition appears increasingly inadequate to capture emerging hybrid solutions based on judicially constructed status. The Italian Supreme Court’s reference to a model inspired by incest-related filiation suggests that the future challenge may not lie in whether parenthood circulates, but in how European legal systems are prepared to accommodate forms of parenthood that are no longer exclusively grounded in biology, intention, or formal adoption, but in ex post judicial balancing of competing constitutional and transnational values. In this sense, the case may contribute to a broader rethinking of parenthood as a status progressively shaped by adjudication rather than predefined categories of domestic family law.

At the same time, however, this apparent shift towards judicially constructed parenthood raises a more structural concern. A model based on non-automatic (safeguards included), case-by-case judicial determination may indeed enhance contextual protection of the child’s best interests, but it also risks producing a form of “fragmentation through adjudication”, where the content of parenthood is no longer primarily differentiated across legal systems at the legislative level, but within them, through variable judicial assessments of broadly framed standards. In cross-border situations, this may result in a second layer of unpredictability, adding decisional divergence to existing conflicts of laws and thereby challenging the very idea of a minimally stable European status of parenthood.

Perhaps the most striking aspect of the order is the analogy drawn between children born through surrogacy and children born from incestuous relationships. The comparison is not based on any moral equivalence between the two situations. Rather, the Supreme Court focuses on a structural element common to both: the child’s birth results from conduct regarded by the legal system as contrary to fundamental values and, at least in part, subject to criminal sanction, while the child remains entirely extraneous to that conduct. On this basis, the Court explores whether the model developed for incest-related filiation – namely, judicial establishment of status subject to a concrete assessment of the child’s best interests – could provide a suitable framework for surrogacy cases as well. Whether this analogy ultimately proves convincing remains open to debate. The solution may be criticised not only from a technical perspective, given the significant differences between the two situations, but also from an ideological and axiological standpoint, since the very act of drawing such a parallel is likely to be perceived differently across legal cultures. Yet precisely for that reason, the Italian order may be of interest beyond Italy. It raises a broader question that could resonate across countries: can legal models originally developed for one category of “problematic” filiations be transposed to another, or does such a move risk creating new tensions in the law of parenthood? Comparative perspectives on this issue would be particularly valuable, especially at a time when European legal systems continue to search for coherent responses to the challenges posed by cross-border surrogacy and the recognition of filiation status established abroad.

Ultimately, the order invites reflection on whether parenthood in European private international law can still be understood as a fixed legal status, or whether it is progressively turning into a process of continuous judicial construction emerging from a creative tension between legislators and courts. This development reveals a structural tension in which legal certainty, judicial discretion and child-centred protection resist stable reconciliation within a single coherent model.