La tutela del minore nato attraverso una pratica di maternità surrogata. L’intervento della Corte costituzionale, in attesa del legislatore

Di Arnaldo Morace Pinelli -

The Constitutional Court, in its decision n. 33/2021, states that, in the difficult balancing between the need to discourage the practice of surrogate motherhood and the need to ensure minors’ rights, the possibility of the adoption under particular circumstances by the “intentional parent” (i.e. the partner of the biological parent in a same sex couple) is not an adequate remedy to protect the interest of the child, because of the intrinsic limits of the this legal institution, designed to regulate exceptional situations, where there is also the need to preserve the legal link between the minor and his family of origin, need which is entirely missing in the medically assisted procreation. Parental suitability of homosexual couples being undeniable and by virtue of always increasing recognition of de facto couples, in an epoch in which marriage no long represents a guarantee of emotional stability, the author believes that the de facto couples, including same sex couples (and even the single person), should be allowed to full adoption. With respect to surrogate motherhood, the author thinks a new typology of adoption should be introduced, with a fast process and a regulation producing effects similar to full adoption. The judge should still verify the presence of the emotional relationship between the minor and the intentional parent.