Eduardo Savarese

'What Is Done, Is Done': How not to Storm Parent-Child in Private International Law, but to Harmonize It with Human Rights Law

  • Abstract

Informations and abstract

Keywords: parent-child; international surrogacy arrangements; public policy (ordre public); recognition of foreign judgements; best interest(s) of the child; right to private and family life.

In the recent years, questions of parent-child, specifically when stemming from international surrogacy arrangements, have become highly controversial in domestic law systems, in private international law and in human rights law as well. The recognition of child status is at the heart of a fundamental struggle of ideas and trends: on the one hand, recognition means stability in the human, social and legal relationships of the concerned child and the aspiration to recognition tends to constitute legal claims for the protection of human rights (of children and legal/intentional parents); on the other hand, surrogacy arrangements involve ethical and legal issues, which concern the dignity of the biological mother and the child’s right to know his/her biological origin. The recent development of the Italian case-law in this subject matter perfectly shows such a process: in 2019, the Court of Cassation, by supporting a quite restrictive idea of the public policy exception, denied recognition to foreign judgements which stated parent-child in respect of both the biological and intentional parents, since surrogacy arrangements violate the Italian ordre public. In 2020, the same Court of Cassation has considered its own interpretation at odds with the European Convention on human rights and the Italian Constitution: thus, it submitted the question to the Constitutional Court. It is the author’s view that this is the time to find a reasonable dialogue between private international law and human rights law, a dialogue which starts to emerge if we compare the current UN work on the Convention on the Rights of the Child and the projects of conventions under examination at the Hague Conference on Private International Law. This cross-fertilization between the exception of ordre public in private international law and human rights law also represents a form of cooperation between national sovereignty and fair international standards. For the purposes of this process the role of domestic judges is crucial: proper balancing general and rather abstract values with human, social and legal claims of justice is a task that can be carried out in a satisfactory manner by the single judge on the basis of the specific circumstances of each and every case.

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