L'evoluzione dei rapporti di filiazione e la riconoscibilità dello status da essi derivante tra ordine pubblico e superiore interesse del minore

Surrogacy and adoption are widespread practices for childless parents. Surrogacy and adoption laws vary widely from State to State. As to surrogacy, some States require genetic parents to obtain a jurisdictional order to have their names on the original birth certificate, without the name of the surrogate mother. Other States (e.g. Ukraine) allow putting the name of the intended parents on the birth certificate. In Italy all forms of surrogacy are forbidden, whether it be traditional or gestational, commercial or altruistic. Other penal consequences are provided by the Criminal Code about the registration of a birth certificate where parents are the intended ones, as provided by the lex loci actus. The right to adopt is not generally recognized in different legal systems. In Italy it is denied to same – sex couples, as only married couples can adopt, as stated by the Italian rules. So, surrogacy and adoption abroad arise several problems concerning filiation, developing a complex case law, characterized by the difficulty to find a justification for not recognizing the status filiationis performed abroad. The focus of this case law lies in the scope of the public policy clause, invoked against the legal effects of acts or foreign judgments concerning surrogacy and adoption. Following the case law of the ECtHR, which defends individual rights beyond the authority of the law, many judgments recently made clear that the involvment of the public policy exception against foreign decision and act recognitions concerning the filiation or the adoption of the child should be proportionate and interpreted through the child’s best interest, that should be interpreted as a basic value of the public policy clause.