Italy's supreme court has ruled that a baby born to a surrogate mother in Ukraine cannot be kept by the Italian couple who paid for it and must be put up for adoption. Under Italian law, the person who gives birth to a baby is legally its mother, and the use of surrogate mothers is outlawed. The couple from northern Italy, both in their fifties and infertile, had been turned down three times in their bid to adopt a child before they turned to surrogacy, according to media reports.
They paid €25,000 to a surrogate mother in Ukraine, who refused to give her name when the baby was born in 2011, leaving the birth certificate blank.
When the couple returned to Italy and tried to register the boy at the registry office, they were charged with fraud, La Stampa daily said, without providing details on how the would-be parents were found out.
Despite a request from the prosecution to leave the child in the Italian couple's care, the court decided that the "child of no-one" -whose mother cannot be traced - must be put up for adoption.RTE News
It is obvious why some couples turn to surrogacy. In this Italian case, the couple was turned down from adopting because they are in their fifties. Some may argue this may be too old to start a family, but the State cannot control this. Especially in this day and age of people living longer and healthier, and where we continually say fifty is the new forty! But the point is, this couple legitimately, under the laws of the Ukraine, went ahead to have their child under a gestational surrogacy contract, with the full support of the medical doctors in the Ukraine as well as the support of the surrogate mother.
The Italian Supreme Court is misguided in stating that this child is the “child of no one” because the court fails to recognize parentage by intention. For what exactly is adoption other than parentage by intention? If this case is taken to a logical conclusion, the Italian authorities should allow the intended parents to become the adoptive parents. Perhaps there is good reason why an adoption is necessary in order to straighten out the legal status of the child, but to deprive the child of parents who caused and intended this birth is clearly not in the child’s best interests. This child will be loved, nurtured, and provided for with his parents who took all the necessary steps to bring him into the world.
The case is also enlightening in terms of where this birth took place. It is crucial that a surrogate birth for Italian parents must take place in a country where the laws can correspond with Italian law so that the baby will be the legal child of the Italian parents. One of the problems with this most recent case is that it took place in the Ukraine and the surrogate was allowed to refuse to give her name for the initial birth certificate. This is what caused the problems for the intended parents. Had they come to the United States to do their surrogacy, they would not have the same problems. In the United States, at least in many of the States in the U.S., establishing the parentage of the intended parents would have been much simpler and the parents would have gone back to Italy with a birth certificate that would have already named them as the legal parents of the child.
All intended parents must be extremely careful and not make surrogacy choices based on costs alone, or location, or even recommendations. All intended parents, no matter what country they live in, should seek legal counsel from a surrogacy lawyer in their home country.