The question of surrogacy in the Italian legal system. The coexistence of a prohibition of criminal penalties with the imperative need to recognize the filial bond

Abstract

In the first part the paper analyzes the Italian legislation on medically assisted procreation and, in particular, on surrogacy, summarizing the interventions of the Constitutional Court on the subject, which have sometimes distorted the original structure intended by the legislator. Once addressed the issue of the punishability of the crime of surrogate motherhood consumed abroad, the contrast between the existence of a criminally sanctioned conduct and the supranational pushes in favor of the full and effective recognition of the bond of filiation will be higlighted. In the second part the paper analyzes the latest intervention of the Constitutional Court on surrogacy. In particular, the discussion focuses on the right of the child to see recognized his filiation relationship with both parents (including the intentional parent, and therefore beyond the genetic link), as balanced with the prohibition of surrogacy in Italy, intended as a principle of public order.