La legittimità del divieto di accesso della donna single alla PMA tra ex ante precauzionale ed ex post riparatorio

This ordinance, following the decision of the Sezioni Unite n. 38162/2022, by confirming that surrogacy is contrary to public order and illegal, affirms that the commissioned child born abroad has the right to a legal recognition of the relationship with both his biological and intended parents. This implies the legitimacy of the partial transcription – limited to the indication of the biological father only – of the foreign act which also carries the indication of the intended parent. As for the latter, the legal relationship with the child can be established by the institution of adoption in special cases, according to art. 44, par. 1, letter d), law n. 184/1984. The Author points out that this statement is consistent with the rulings of the Constitutional Court and the European Court of Human Rights, while the literature is more mixed and reveals, besides opinions that adhere to the alignment of the Sezioni Unite, critical comments, both in the sense that the instrument of adoption in special cases is insufficient to guarantee the rights of the child and, on the other hand, that it may represent a weakening of the prohibition.