Principio di continuità dello status e divieto di maternità surrogata

In recent years there has been an evolution of medically assisted procreation techniques which, in turn, has called family law to find new solutions to particular conflicts of interest, specifically regarding the status filiationis of the child born through gestation by substitution. In this instance, the ruling of the Roman Court has rejected the action ex art. 263 c.c. against the intentional parent (mother) submitted by the special curator of the minors born through gestation by substitution. The judge’s decisions, on the one hand, follow some aspects of constitutional jurispruden- ce which finds that the verification of truth regarding the children’s birth does not represent an absolute value, which means that there is to be a balance between such value and the minor’s best interest. On the other hand, the Court’s arguments exclude that the ban on surrogate motherhood, punished by criminal law, could produce detrimental effects in reference to the legal position of the minors. Following on from said reasoning, the judge has to discretionally evaluate the elements from which to infer the interest of the minor in continuity with the emotional bond that exists with the intentional parent. Elements such as the duration of the parent-child relationship established in Italy after the registra- tion of the foreign birth certificates, the need to protect the minors’ identity that has been forming through the years and the inadequacy of the rules on adoption in particular cases, pursuant to art. 44 lett. d) of the l. 184 of 1983, to establish a homogenous relationship with the intentional parent regarding the full filiation relationship that already exists. The ruling of the Roman Court can therefore be accepted and shared in its argumentative structure for the concrete approach with which it resolves the conflict of interest that emerges if the status of a child born through gestation by substitution is discussed.