title: Surrogate motherhood: Where Italy is now and where Europe is going. Can the genetic mother be considered the legal mother?
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.
authors.affiliation: Department of Anatomical, Histological, Forensic and Orthopaedic Sciences, Sapienza University of Rome, Viale Regina Elena 336, 00161 Rome, Italy; Neuromed, Istituto Mediterraneo Neurologico (IRCCS), Via Atinense 18, Pozzilli, 86077 Isernia, Italy.
authors.forename: Paola
authors.initials: P
authors.lastname: Frati
authors.affiliation: Department of Anatomical, Histological, Forensic and Orthopaedic Sciences, Sapienza University of Rome, Viale Regina Elena 336, 00161 Rome, Italy.
authors.forename: Francesco Paolo
authors.initials: FP
authors.lastname: Busardò
authors.affiliation: Department of Anatomical, Histological, Forensic and Orthopaedic Sciences, Sapienza University of Rome, Viale Regina Elena 336, 00161 Rome, Italy.
authors.forename: Gianluca Montanari
authors.initials: GM
authors.lastname: Vergallo
authors.affiliation: Department of Obstetric Gynaecological and Urological Sciences, Sapienza University of Rome, Via di Grottarossa 1035, 00189 Rome, Italy.
authors.forename: Arianna
authors.initials: A
authors.lastname: Pacchiarotti
authors.affiliation: Department of Anatomical, Histological, Forensic and Orthopaedic Sciences, Sapienza University of Rome, Viale Regina Elena 336, 00161 Rome, Italy. Electronic address: vfinesc@tin.it.
authors.forename: Vittorio
authors.initials: V
authors.lastname: Fineschi
mesh_terms: D005060:Europe; D005333:Fetus; D006806:Human Rights; D006801:Humans; D007231:Infant, Newborn; D007316:Insemination, Artificial, Heterologous / Q000331:legislation & jurisprudence*; D007558:Italy; D009035:Mothers; D011639:Public Opinion; D013533:Gestational Carriers / Q000331:legislation & jurisprudence*
keywords: Genetic mother's rights; Heterologous insemination; Marital status; Protection of children; Surrogate motherhood; Unborn child health