By interlocutory order No. 5656/2026, the First Civil Section of the Court of Cassation, seised of an appeal by a married heterosexual couple against the refusal to transcribe the Ukrainian birth certificate of a child born through surrogacy, transmits the file to the First President, under Article 374(2) of the Code of Civil Procedure, for possible assignment to the United Sections. Having reaffirmed that the practice is contrary to international public policy, the Panel doubts that adoption in special cases remains an adequate means of protecting the child and proposes to examine whether the model for the judicial establishment of status provided for children born of incest (Articles 251 and 278 of the Civil Code) can be extended by interpretation to children born of surrogacy.

The child was born in Kyiv in 2020 through surrogacy carried out in compliance with the lex loci: the father is the genetic parent, the female gamete came from an anonymous donor, and the embryo, created in vitro, was implanted in a gestational carrier. The civil registrar refused transcription as contrary to public policy. The Tribunal and, on review, the Court of Appeal of Bari (order published on 18 November 2024) dismissed the application: the appellate court recharacterised the action as proceedings for recognition of the effects of a foreign act under Article 67 of Law No. 218/1995, held that the review could not be confined to the formal regularity of the act and, citing the United Sections, held that the child's interest in relational continuity, identity and having two parents is secured by adoption in special cases.

The appellants raised four grounds. By the first two they complain that the decision is null for having extended the review beyond the scope of the claim and of the proceedings under Article 96 of Presidential Decree No. 396/2000; the third challenges the notion of international public policy (Articles 65 of Law No. 218/1995, 3 of the UN Convention on the Rights of the Child, and 8 and 14 ECHR in conjunction with Article 117 of the Constitution); the fourth alleges failure to examine the decisive fact of the child's interest in a non-discriminatory regime of protection. The Panel refers the third and fourth grounds to the United Sections, as they raise a question of principle of particular importance, and carries out a non-binding preliminary assessment of the first two, finding them no obstacle: the subject matter of the proceedings could not but include the reason for the refusal, namely contrariety to public policy, since the dispute concerns status in any event.

The order does not call into question the contrariety of surrogacy to international public policy; indeed it stresses its reinforcement by Law No. 169/2024, which extended criminal liability to those who resort to the practice in foreign countries where it is lawful, without however affecting the child's legal position. Having reviewed the dialogue between the courts (Court of Cassation, United Sections, No. 38162/2022; Constitutional Court No. 33/2021; ECtHR, C. v. Italy, 31 August 2023), the Panel infers that protection of the child may not coincide with the automatic establishment of status, provided it does not amount to an impossibility or extreme difficulty of obtaining legal recognition of the bond.

The doubt about adoption in special cases rests on its dependence on the initiative and continued will of the adopter, already noted by the United Sections in 2022, and on Constitutional Court judgment No. 68/2025, concerning a couple of women. While ruling out that automatic recognition can operate in cases of surrogacy, the Constitutional Court expressed a judgment of inadequacy of adoption that, in that respect, also applies to children born of surrogacy, and consolidated the principle of the uniqueness of the status of child, from which the Panel derives a uniform system of rights that may be conditioned only by an individualised judicial assessment.

The Panel identifies in the paradigm of Articles 251 and 278 of the Civil Code, cited by Constitutional Court judgments Nos. 33/2021 and 68/2025 as an example of adequate balancing, a possible model: judicial establishment of status, following a twofold assessment of the absence of prejudice and the existence of the child's interest, not based on favor veritatis and capable of being initiated by the child. The two situations share features (criminal relevance of the procreative conduct, the need for rigorous balancing, the child's extraneousness to the procreative event). The Panel rules out, however, entrusting the balancing as a general matter to Article 279 of the Civil Code.

The order is interlocutory and does not decide the dispute: the outcome depends on possible assignment and on the ruling of the United Sections. From the standpoint of family pluralism, the order leaves the public-policy limit intact but shifts the focus from whether to how the child is protected, bringing the issue back to the principle of the uniqueness of the status of child and to the search for an individualised judicial assessment that does not leave the establishment of the bond to the sole will of the intended parent.

 

(Comment by Stefania Pia Perrino)