A Tale of Two Fathers

The Italian Law Journal, Vol. 05 – No. 01 (2019)

HEC Paris Research Paper No. LAW-2019-1352

29 Pages Posted: 10 Oct 2019

See all articles by Matteo Winkler

Matteo Winkler

HEC Paris

Kellen Trihla Schappo

Bocconi University - Department of Law

Date Written: August 1, 2019

Abstract

This article comments on the judgment no 12193 rendered by the Sezioni Unite of the Corte di Cassazione on 8 May 2019, where the recognition and registration, in Italy, of a foreign parental order inscribing the nonbiological parent as the children’s legal father were denied on the ground that they violated the prohibition of surrogacy under Italian law, which was considered to be of public policy. It scrutinises this judgment in two steps. First, it criticises the court’s methodology in the construction of the notion of public policy both in general and with particular regard to the surrogacy ban. Second, it examines whether the best interests of the children involved were sufficiently taken account of, and it finds that they were not. It concludes that, contrary to what the law prescribes, this judgment failed to give voice to the children born via surrogacy abroad and living with parents of the same sex.

Suggested Citation

Winkler, Matteo and Trihla Schappo, Kellen, A Tale of Two Fathers (August 1, 2019). The Italian Law Journal, Vol. 05 – No. 01 (2019); HEC Paris Research Paper No. LAW-2019-1352. Available at SSRN: https://ssrn.com/abstract=3466159 or http://dx.doi.org/10.2139/ssrn.3466159

Matteo Winkler (Contact Author)

HEC Paris ( email )

1 rue de la Libération
Jouy-en-Josas Cedex, 78351
France

HOME PAGE: http://www.hec.edu/Faculty-Research/Faculty-Directory/WINKLER-Matteo-M

Kellen Trihla Schappo

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, 20136
Italy

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