In this blog, Connie Atkinson, Partner at Kingsley Napley, and Veronica Dindo, Solicitor at LawLab Studio Legale, look at the legal position in England & Wales and Italy and the recognition of foreign orders relating to the birth of children born following a surrogacy arrangement abroad.

Surrogacy in England and Wales by Connie Atkinson

The majority of parents we advise who have had a child using a surrogate have an international connection. One or both of the parents may have been born, or now live, abroad and/or the surrogacy arrangement may have taken place abroad. One of the questions I am regularly asked by parents is whether the legal position in either the country in which the child is born or the country in which the parents live is recognised in England. My answer is always no. There is currently no international convention on the recognition of laws relating to surrogacy arrangements and the ability to draft such a convention is likely to be difficult as surrogacy is viewed and treated so differently across the globe. England and Wales does not recognise the legal position in other countries even where surrogacy is a mature and well regulated practice.

In England and Wales, if a child is born following a surrogacy arrangement either here or abroad, the surrogate will be the legal mother (whether or not she is genetically related to the child) and her husband, if she is married, will be the legal father. This is the case no matter what the position is in the country in which the child is born. If the surrogate is not married, the biological father of the child may be considered the legal father under English law but he will not necessarily have parental responsibility (PR) for the child.

In order to extinguish the surrogates and her husbands PR and legal parentage, intended parents must currently make an application to the English court for a parental order (PO), which will formally recognise the intended parents as the legal parents under English law. In the case of an unmarried surrogate where the intended father is genetically related to the child, a PO is still required to extinguish the surrogates legal parentage, to give the intended mother or second intended parent legal parentage and, in the case of children born abroad, to give both intended parents PR.

In order to be eligible to make a PO, parents must meet the criteria set out in section 54 (for two applicants) and section 54A (for one applicant) of the Human Fertilisation and Embryology Act 2008 (s54 criteria).

Surrogacy in Italy - Veronica Dindo

In Italy, surrogacy practices are explicitly prohibited. In fact, anyone who creates, organises or advertises surrogacy commits an offense of criminal relevance (Article 12 paragraph 6 of Law 40/2004).

However, since surrogacy is legitimate in other countries, Italian courts have been faced, in recent years, with claims concerning the recognition of foreign orders and birth certificates for children born abroad by means of a surrogate.

Since there is no international convention on the subject, the criteria to be followed in relation to the recognition of foreign orders and birth certificates relating to a child born through surrogacy are those set out generally by the Italian Private International law (Law 218/1995). One of the requirements to enable the recognition of a foreign order is the compliance with public order(art. 64 - 68 letter g Law 218/1995; art. 18 Decree 396/2000; art. 23 EU Reg. 2201/2003).

Case law has arisen in cases involving parents by way of surrogacy because the parents, who are declared as such on the foreign birth certificates and/or orders, have had their requests for the recognition and registration of their status as parents rejected by the Italian authority (Birth Register Office).

The reason for the rejections was because to recognise them as parents would supposedly conflict with the public order, as those foreign orders and certificates related to the use of a practice that is explicitly prohibited and criminally sanctioned by Italian law. Same sex parenthood in itself was also considered as another potential reason of conflict against public order in Italy.

Decisions given by first instance courts (to which the parents resorted to obtain their formal recognition as parents in Italy) were inconsistent, causing uncertainty and unequal treatment. At the same time, however, the decisions are the only source of guidance or regulation in respect of the effects of surrogacy with regard to the childrens status and the rights of all parties involved, as no guidelines are provided by the Law (all the Law currently stipulates is that surrogacy as a practice is prohibited).

Recently, cases involving surrogacy arrangements have finally reached the Supreme Court of Cassation.

Italy is a civil law system, so there is no principle of the binding precedent (whereby precedents set by the higher courts must be followed by the lower courts) and judges are subject only to the law (art. 101 Italian Constitution). However, the rulings given by the Supreme Court of Cassation, especially when sitting in Joint Sessions, are particularly authoritative.

This Court has a function of ensuring the correct interpretation of the law and so if lower courts decide to deviate from the principles stated in its judgments, they need to explain their reasons why (art. 374 co. 4 Italian civil procedure code).

Summary

The above quite different legal systems and processes by which parents can be legally recognised as their childrens parents highlights the difficulties with creating families across international borders. It is imperative that parents take legal advice at home, the country in which their child will be born and in any other country in which they have a significant connection before embarking on any surrogacy arrangement.

This blog was originally published in the November 2020 issue of Family Law Journal.

See original here:
The legal position of international surrogacy in England and Italy and the recognition of foreign parental orders - Lexology