“The Best Interests of the Parents”. La maternità surrogata in Europa tra Interessi del bambino, Corti supreme e silenzio dei legislatori

Abstract

This paper analyses the relevant case-law of the Supreme and Constitutional Courts of Germany, Austria and Italy with regard to surrogate motherhood and the protection of the child’s rights. After a brief overview of the legal regimes in the three countries which ban this practice without providing a regulation of the consequences of illegal surrogacies, the author moves on to inquiring how the Courts are adopting the principles stated by the ECtHR. The child’s rights and best interests are essential for the recognition of parenthood for the intended parents and the continuation of the common life with them. The German Federal Court of Justice, as well as the Austrian Constitutional Court, has already accepted to give to the position of the involved child the priority. Italy, on the contrary, is showing more resistance, although a recent judgment of the Court of Cassation – taking account of the German case-law – acquitted the intended parents. The mere recognition of the parent relationship and granting of the possibility for them to live together with the child could however encourage parents to go abroad in order to make use of surrogacy. In the author’s view, this should be prevented providing sanctions for the intended parents, without using the involved child as a means to an end.