The serious void of protection of the interest of the minor, born from heterologous fertilization carried out abroad by two women whose relationship, after years, has become conflicting, will no longer be tolerable if the inertia of the legislator continues.
This is what is stated in sentence no.
32 filed today (editor Silvana Sciarra) in which the Constitutional Court declared inadmissible the questions raised by the Court of Padua, with reference to articles 8 and 9 of the law of 19 February 2004, n.40 (Rules on medically assisted procreation) and of article 250 of the civil code.
The Court affirmed that it is primarily up to the legislator to identify the "reasonable point of balance between the various constitutional assets involved, while respecting the dignity of the human person", to provide, in an organic manner, adequate protection for the rights of the child "to care, 'education, education, maintenance, succession and, more generally, the continuity and comfort of shared habits ", avoiding generating disharmony in the system.
The Court of Padua had denounced the lack of protection, since the aforementioned rules do not allow those born from a shared PMA project, practiced abroad by two women, the attribution of the status of a child also recognized by the intentional mother, when there is no are the conditions for proceeding with "adoption in particular cases" and the interest of the minor is judicially established.
In the case being examined by the Venetian judges, in fact, following a conflictual situation created in the couple after years of cohabitation and joint care of two girls born in Italy, the intentional mother was precluded from exercising parental responsibility, despite the attempts to re-establish a normal emotional relationship with them.
In the motivation of the sentence, reference is made to previous decisions of the Constitutional Court from which emerges, with reference to articles 2, 30 and 31 of the Constitution, the constant attention to the best interest of the child, even born from medically assisted procreation even before the practice of heterologous fertilization was disciplined, and the enhancement of social parenting, if not coinciding with the biological one, since the genetic data is not an essential requirement of the family.
The sentence cites the international instruments of human rights and the jurisprudence of the two European Courts, to bring out a broad and synergistic framework of references to the protection of the "pre-eminent" and "best" interests of minors in establishing links with both parents.
The identity of the children, central to the decisions of the Strasbourg Court, ends up being "engraved as a component of his private life", if a stable emotional bond is not established, strengthened by filiation.
The Constitutional Court has indicated, by way of example, the areas within which the intervention of the legislator could take place to ensure adequate protection for minors: from the rewriting of the provisions on the 'status filiationis', to a new type of adoption that promptly guarantees the fullness of rights of the born.