Italian Court of Cassation, First Civil Section, interlocutory order, 12 March 2026, no. 5656

While upholding that surrogacy is contrary to international public policy, the First Civil Section of the Court of Cassation doubts that adoption in special cases (Article 44(d) of Law No. 184/1983) remains an adequate forum for balancing the interests at stake in protecting a child born abroad through that practice. It refers the case file to the First President for possible assignment to the United Sections, so that they may assess whether the judicial model for establishing filiation status provided for children born of incest (Articles 251 and 278 of the Civil Code) can be extended by interpretation to such children.

Art. 117 Italian Constitution

Arts. 8, 14 ECHR

Art. 3 of the UN Convention on the Rights of the Child (Law No. 176/1991)

Arts. 65, 67 of Law No. 218/1995 reforming the Italian system of private international law

Art. 12 Law No. 40/2004 on medically assisted procreation, as amended by Law No. 169/2024

Art. 44 Law No. 184/1983 on adoption in special cases

Art. 251 of the Civil Code on the recognition of children born of incest and authorisation to bring proceedings

Art. 278 of the Civil Code on the recognition of children born of incest and authorisation to bring proceedings

Art. 315 of the Civil Code on the uniqueness of the status of child

Art. 95 of Presidential Decree No. 396/2000 on rectification

Art. 96 of Presidential Decree No. 396/2000 on objection to a civil registrar's refusal

1. While upholding that surrogacy is contrary to international public policy, the First Civil Section of the Court of Cassation doubts that adoption in special cases (Article 44(d) of Law No. 184/1983) remains an adequate forum for balancing the interests at stake in protecting a child born abroad through that practice. It refers the case file to the First President for possible assignment to the United Sections, so that they may assess whether the judicial model for establishing filiation status provided for children born of incest (Articles 251 and 278 of the Civil Code) can be extended by interpretation to such children.

2. Adoption in special cases under Article 44(d) of Law No. 184/1983, although broadened by Constitutional Court judgment and by United Sections judgment in 2022, continues to raise problems as an instrument for protecting a child born of surrogacy, since the commencement and continuation of the proceedings depend solely on the will of the intended parent, and the child cannot obtain the establishment of status where the adopter withdraws consent or becomes unable to proceed. In the light of Constitutional Court judgment No. 68/2025, the Panel doubts that it can still serve, as a necessary and exclusive avenue, as an adequate forum for balancing in line with constitutional and supranational principles.

3. The principle of the uniqueness of the status of child, as an interpretative criterion for the entire law of filiation, also applies to children born of surrogacy. It gives rise to a uniform system of rights and protections which may be conditioned, including by reason of the choice of generative process, only by an ad hoc judicial assessment, free of automatic mechanisms and carried out according to the child’s concrete and current interests, without the negative judgment on the parents’ conduct being transferred onto the legal sphere of the child.

4. The model for the judicial establishment of status provided for children born of incest (Articles 251 and 278 of the Civil Code), cited in Constitutional Court judgments Nos. 33/2021 and 68/2025 as an example of adequate balancing, makes recognition subject to a twofold judicial assessment of the absence of prejudice and the existence of the child's interest, including prospectively, and may also be initiated by the child (Article 273 of the Civil Code). Since birth through surrogacy shares features with birth from incest (criminal relevance of the procreative conduct, the child’s extraneousness to it, the need for rigorous balancing), the question whether that model may be extended by interpretation to children born of surrogacy is referred to the First President for possible assignment to the United Sections. The Panel rules out, as a general matter, entrusting the balancing to Article 279 of the Civil Code, which protects essentially patrimonial interests and does not remove the legal impossibility of accessing status.

5. In proceedings brought by a married couple seeking transcription of the birth certificate, issued in Ukraine, of a child born through surrogacy, whether the review of contrariety to international public policy takes place through an action for recognition of the effects of the foreign act (Article 67 of Law No. 218/1995) or through an objection to the civil registrar’s refusal to transcribe, the dispute is, in substance, one concerning filiation status. The subject matter of the proceedings therefore includes the reason for the refusal, namely contrariety to public policy, even where the parties’ arguments are confined to the formal regularity of the act and compliance with the lex loci.