Surrogate motherhood: Where Italy is now and where Europe is going. Can the genetic mother be considered the legal mother?. (February 2015)

• Record Type: Journal Article
• Authors: Frati, Paola; Busardò, Francesco Paolo; Vergallo, Gianluca Montanari; Pacchiarotti, Arianna; Fineschi, Vittorio
• Is Part Of: Journal of forensic and legal medicine. Volume 30(2015)
• Page Start: 4
• Page End: 8
• Publication Date: 2015-02
• Subjects: Surrogate motherhood -- Unborn child health -- Marital status -- Heterologous insemination -- Genetic mother's rights -- Protection of children; Medical jurisprudence -- Periodicals; Forensic sciences -- Periodicals; Forensic Medicine -- Periodicals; Médecine légale -- Périodiques; Electronic journals; 614.1
• DOI: 10.1016/j.jflm.2014.12.005
• Languages: English
• ISSNs: 1752-928X

Abstract

Abstract: This paper explores a recent case, which has reawakened the debate in Italy over the opportunities offered by technological progress in the field of Assisted Reproduction. On 17 January 2013, the Juvenile Court of Brescia ordered the removal and adoption of a newborn baby whose parents had turned to surrogate motherhood and heterologous insemination in Ukraine, thus expressly violating the Italian and Ukrainian laws. The authors provide a critical analysis of the legal reasoning given by the Court in order to balance the best interests of the unborn child and the needs of certain parents suffering from sterility/infertility problems. In establishing the legal status of parent, the guiding principle must be the child's right not to be objectified or exploited by the adult. Therefore, it is necessary to provide appropriate tools to balance, on the one hand, the defence of the desire to become parents, if legitimate, and on the other the preservation of the legal and harmonious development of the child. Thus, the professionals have the burden of adapting the legal rules to a variety of individual cases, always taking into account the need to comply with the principles of both Constitutional and European Union law. Highlights: We present a controversy case in the field of Assisted Reproduction Techniques (ART). We provide a critical analysis of the legal reasoning given by the Courts. Best interests of the unborn child and the needs of parents are discussed. Prohibition of heterologous fertilization in the EU is analyzed. Prohibition of surrogacy is discussed in a comparative way.