“I am my family” IT.pdf · 2020-06-23 · THEMIS COMPETITON 2020 Semi-Final B - EU AND EUROPEAN...

THEMIS COMPETITON 2020

Semi-Final B - EU AND EUROPEAN FAMILY LAW

“I am my family”

freedom of movement of persons and

circulation of status familiae

within the European Union

Team Italy

Giuseppe Lisella

Claudia Sechi

Rossella Torrusio

tutor: Simona Esposito

Themis Competition Semi – Final B

ABSTRACT

Chapter I. Status personae: not (only!) a symbol: the condition of the individual in the family and in

the society.

(1) Status personae and its relevance in the legal system.

(2) Movement of people and circulation of status: problematic hypothesis and involved interests.

(3) Circulation of status as a prerequisite for the circulation of families.

3.1) “You are not my son, here”: two emblematic cases

3.2) The relevance of the status for the recognition and enforcement of family decisions.

Chapter II. Regulation of status within the European Union: a matter of domestic law?

(1) Recognition of status personae: status quo of EU instruments.

(2) EU instruments: Regulation (EU) 2016/1191; Regulation (EU) 2019/2016; Directive

2004/38/EC; Directive 2003/86/EC

(3) Some problematic cases.

Chapter III: Case law solutions.

(1) Case law in Italy: the limit of public policy and fundamental rights.

(2) Case law in the other EU Member States.

(3) The importance of effective family life; an example: ECJ, Grand Chambre, 26th March 2019:

Case C-129/18.

Chapter IV: A common perspective: is it possible?

(1) Critical aspects and Proposals: International and EU perspective.

(2) “Familia Ante Omnia”: conclusions.


I. Status personae: not (only!) a symbol: the condition of the individual in the family and in the society.

Statuses are an essential aspect of legal organization within a State, because they act as a diaphragm

between it and individuals, outlining the individual’s position in reference to a certain social

formation. Family statuses compone a wide variety of legal tools, necessary to attribute rights and

duties to people involved by family ties. The recognition of statuses allows citizens to enjoy rights

acquired in their own country and clearly regulate cross-border situations.

Pursuing this objective isn’t always predictable, because of the significant legal but also cultural

differences within UE. The process of European integration requires more flexibility from States in

front of certain conditions, especially when human rights considered fundamental are involved.

(1) Status personae and its relevance in the legal system.

A status is essentially a bundle of substantive rights and obligations, which is granted to applicants

who satisfy certain conditions. Requirements and criteria for the assessment of applications are

established by domestic law. Anyway, there is a significant number of situations which involve

people from different countries (or variously linked to different countries) and need to be protected

by law. This protection implies the possibility to enforce everywhere a status, held in one State. This

appears the only path to ensure authentic protection for people involved and create unity, especially

within Europe and the Member States which compose it.

In Italy is in force the L.218/1995, which regulates cross-border situations, in order to identify the

law applicable to the specific case, considering the connecting factors1. When it comes to the family

law, no special procedures are required to enforce rulings, made by the Member States. The automatic

recognition of decisions is the main instrument to allow statuses to circulate within Europe. In this

regard, we can say that statuses represent the main instrument for the recognition of rights to people

involved by familiar links. However, the coordination among nationals legislation is often hard to

achieve and States are required to make a greater effort of interpretation in order to realize a

substantial justice for people2.

1 Kitime Eliud, The personal connecting factors and the conflict of laws: the Margosa to the choice of laws in the resolution

of dispute containing foreign elements: "connecting factors are circumstances that make the linkage between event, thing,

transaction, person and country; such factors link person, events, etc. to country. These elements linking dispute to

particular countries are connecting factors links between event, thing, transaction, person and country; such factors link

person, events, to the country". 2 Antonio Bartolini, Roberto Cippitani, Valentina Colcelli, Dictionary of Statuses within EU Law, page 22:

"Discrimination founded on Member States citizenship is something that EU law intends to overcome. If national

citizenship becomes a ground of discrimination, it finds itself in conflict with the aims of the EU and its Treaties (see

Articles 2 and 3 TFUE). […] Expression fundamental status refers to the elimination of discrimination through the

enjoyment of civil rights because of the exercise of free movement”.


(2) Movement of people and circulation of status: problematic hypothesis and involved interests.

Integration among the Member States is a still-evolving process, started from the economic sector

and gradually extended to all areas of life. We can say that family law is the field where the need to

achieve a higher level of integration is most clearly perceived from people because directly affects

their personal lives.

The freedom of movement has created a wide number of cross-border families, whose rights need the

recognition of statutes to be enjoyed. The differences among legislations and the substantial lack of

regulations (save as regards specific aspects, such as divorce) have determined a rising number of

conflicts which put citizens into legal chaos. In fact, it happens that the same status conferred by a

Member State is not recognized by another one (and issues increase when the Third States are

involved). This leads to a lack of protection for the people involved and, above all, a substantial

injustice which –especially in the field of family law- risks involving blameless individuals, such as

minors.

As matter of fact, exists a relevant number of legal disputes concerning them and focused on the

recognition of their status of the son, in countries different from those they come from: among the

most recurring situations, there is the recognition of parenthood in case of surrogacy and adoption by

same-sex couples. In all these cases, an interpretative compromise and an effort of coordination

among different legal systems look essential, in order to protect weak individuals involved. This

activity becomes more significant when legal arrangements totally out of the European framework

are involved and rooted in cultural contests far from ours (that’s what happened for kafala system3).

Moreover, legal conflicts regard all variety of family statuses, such as –for example- the marital

status. In fact, in the case of polygamy, which is known to be allowed in several Islamic countries;

this entails considerable difficulties when it comes to recognizing the right of family reunification to

this kind of couples. In fact, the practical problem is whether to allow the family reunification to

several wives of the same husband, giving priority to rights legitimately acquired abroad, sacrificing

principles of our legal systems, such as equality between men and women4. The debate becomes

complicated when the request of family reunification involves minor children5.

3 See infra, Chapter III.3. 4 In Italy, are generally recognized the patrimonial consequences of polygamous marriages, but not the other ones. This

kind of solution is consistent with the directive 2003/86/CE. 5 Solutions offered by Courts are various. In 2003, the Bologna Court authorized the family reunification; on the contrary,

in 2001 the Turin Court denied a visa to a child born in a polygamous family (considering that like the way to follow only

in case of necessity to preserve health and psycho-physical wellbeing of the child).


The legal link between spouses appears also frequently controversial when it comes to the recognition

of same-sex marriages and their regulation into the European countries, which differently rule them6.

The variety of situations to protect is an effect of substantial differences among cultural contests and

religious or social factors which affect them. When it comes to Third countries, the difference seems

sometimes unbridgeable.

(3) Circulation of status as a prerequisite for the circulation of families.

The family law is an ever-changing branch of law, influenced by society’s development, also into the

ethical field. The new family patterns and their spreading have required to find new solutions, also

adapting traditional schemes7. In particular, we want to focus on the progressive change of

perspective referred to the concept of parenthood, now valued in its dimension of “right to be a

parent”, as a manifestation of individual freedom.

This is one of the reasons behind the recourse to surrogacy8 from heterosexual (but also same-sex)

couples, differently considered and ruled9 by the Member States. As a matter of fact, it can occur that

the same child is recognized son (or daughter) of a couple in the eyes of State A, but not in the eyes

of State B. That’s a typical conflict among statuses to solve (also when the Third States are involved),

giving priority to the best interest of the child and his necessity to keep the pre-existent familiar ties.

(3.1) You are not my son here: two emblematic cases

In Italy is in force a strict regulation about surrogacy, which is considered contrary to the principle of

public policy10. The reasons behind this choice are various and, among them, the intention to avoid

the exploitation of women from poor countries usually persuaded by the compensation paid by the

commissioning couple. However, the priority of the child’s interest has sometimes allowed a wider

interpretation of the law.

An emblematic case can be considered the ruling of the Bari Court of Appeal dating back to 2009

and involving a cross-border married couple, composed by a British man and an Italian woman. The

6 In Italy, same-sex couples are allowed to contract a civil union by l. 76/2016. After that, the couple has the same rights

and duties (also regarding inheritance rights) of a married couple. However, jurisprudence has highlighted the lack of an

obligation to observe mutual fidelity between contractors. This has fuelled debate. 7 Prakash Shah, Marie-Claire Foblets, 2016. Family, Religion and Law: Cultural Encounters in Europe, page 68. 8 Krista Sirola, “are you my mother? Defending the rights of intended parents in gestational surrogacy arrangements in

Pennsylvania”, in the Journal of Gender, Social policy and the Law, vol. 14/2006pag.134. 9 Ismini Kriari, Alessia Valongo in The Italian Law Journal, vol. 02-No. 02/2016), International issues regarding

surrogacy (pag. 336): “starting from an overview of all foreign legal systems, it is apparent that surrogacy is banned in

several European countries, but permitted in others, such as Greece, the United Kingdom, Russia, Ukraine, in addition

to various non- European nations”. 10 Italian law No. 40/2004 bans surrogacy and, before the judgement of the Constitutional Court in 2014, also the

heterologous fecundation.


latter had fertility issues, so they chose to resort to surrogacy, entering into an agreement with a British

woman, who gave birth two twins11.

In the UK, where the agreement was concluded, surrogacy was allowed, so there were no reasons to

prevent commissioning mother to be recognized the corresponding status. After a while, the family

moved to Italy and the spouses separated by mutual agreement and, at that point, the recognition of

the status of the mother in Italy had become essential, in order to provide for the custody of children.

The Bari Court of Appeal ruled in favour of the woman, considering the best interest of the children

to preserve their family tie with the woman they had considered their own mother for over ten years.

However, the real meaning of the “best interest of the child” isn’t unique, because it needs to be

conformed to the specific case. As a matter of fact, it happened that apparently similar situations have

been differently solved by Courts.

For example, in 201912, the Court of Cassation –as more clearly will be seen below- denied

transcription into the Italian civil registrar of the birth certificate of a baby, born in Canada after an

agreement between a same-sex couple and a surrogate mother, considering it contrary to the

international public policy (anyway, it should be noted that, in this case, the situation was complicated

by the limit fixed by Italian legislation, which does not allow same-sex couples to adopt children).

(3.2) The relevance of the status for the recognition and enforcement of family decisions

In accordance with the L. 218/1995, foreign rulings are automatically recognized in Italy, on

condition that they comply with some parameters and, mainly, with the public policy. The latter

should be regarded as the set of principles relating to the ethical and social structure of a State in a

certain historical period. The process of European integration has forced a progressive dissociation

of public order from sovereignty, in order to identify common principles, useful to realize the mutual

recognition of judgements.

As a matter of fact, surrogate motherhood would be inconsistent with primary values on which our

legal system is based and, because of this reason, it is banned. However, recognizing a right –

legitimately acquired abroad is different from allowing behaviours in conflict with national rules.

When it comes to surrogate motherhood –regardless of the validity or not of surrogacy agreements-

it is necessary that the family tie between mother and child is guaranteed. This is the reason of the

essential value of family statutes, in order to the recognition of family judgements, made abroad: the

11 There are different types of surrogacy agreements; in this sense, Anita Stuhmcke, in “For love or for money: the legal

regulation of surrogate motherhood”, in School of Law, University of Western Sidney, vol. 3, n.1, 1996: “surrogate

arrangements may be made with or without payment to the surrogate mother. Commercial surrogacy is the term used to

describe an agreement where payment is made to the surrogate mother. Altruistic surrogacy is the term used to describe

the formal arrangements where no money is paid to the surrogate mother”. 12 Read SS.UU. Court of Cassation n. 12193/2019.


pre-existence of status and the necessity of preserving effects already produced by it (mainly in the

sphere of minors involved) can justify the recognition of cases like surrogacy motherhood.

This shows how much statuses are often essential for the reunification of cross-border families,

because they sometimes allow reducing differences between legal systems, in order to ensure the

protection of already achieved rights. National Courts are requested to identify extensive

interpretations, suitable to regulate situations not specifically ruled by national laws, without

exceeding the limit of incompatibility with the fundamental principles.

II. Regulation of status within the EU: a matter of domestic law?

(1) Recognition of status personae: status quo of EU instruments.

The European legal order offers to its Member States citizens a set of rights and obligations to

guarantee the creation of the single market and to protect the fundamental and social rights of people,

together with and in accordance with the right to move freely within the Schengen area.

All these rights stem from the status of European citizen13, widely emphasized by the Court of Justice

of the European Union14, from which derive various subjective juridical situations, all functional to

warrant the four fundamental freedoms of the European Union (including, for example the right to

live anywhere in the Eurozone; some social benefits; the right to enter into contracts - not only

employment contracts - like the regulation of customer rights), and the extension of the same rights

to the citizens’ family members, such as, the right to family reunification, that is mainly based on the

legal recognition of the type of union and of family ties, as well as the recognition of inheritance

rights and wills.15

The aim of this chapter is to examine the EU instruments protecting the free movement, not only of

people, but also of their personal and family status, with specific reference to cross-border families.

Since family law and the resulting personals and family status is the product of the historical and

cultural values of the tradition of a given people (e.g. the status of spouse or child or partner), the

determination of their substantive content is left to individual Member States legislators; as a result,

13 This is what emerges from article 18 of TFEU and Chapter V of the European Charter of Fundamental Rights. 14, 11.07.2002, C-224/98, D’Hoop; Court of Justice of the European Union, 21.07.2011, C-503/09, Lucy Stewart v.

Secretary of State for Work and Pension. 15 Valentina Colcelli, ‘Concetto di status nel diritto europeo. Doveri inespressi a fronte dei diritti sanciti nel diritto

dell’Unione europea, Conference Cittadinanze Amministrative e istituzioni al tempo della crisi, University of Perugia

(PRIN 2011 Istituzioni Democratiche e amministrazioni d’Europa: coesione ed innovazione al tempo della crisi

economica), October 2015.


there is the risk that the multiplicity of family status models, likely to be different from nation to

nation, make their recognition difficult when people move from one state to another16 .

In fact, the recognition of personal and family status between different States is mainly entrusted to

the principles of mutual recognition and non-discrimination and also to the extension of the concept

of international public order.17

For this reason and in order to avoid these problems, the purpose of the European Union is to

harmonize the family law system of its Member States through different instruments, such as the

statements of principle at the level of primary legislation18, of a subsidiary nature; EU regulations and

directives which take on the character of procedural rules and conflict rules, together with Article 81

TFEU which concerns judicial cooperation in civil matters and allows the EU institutions to adopt

measures relating to family law with cross-border implications.

In addition, there are comparative studies of the Member States’ judicial systems by the Commission

on EU Family Law (CEFL)19, which originated the rules of soft law: these rules are contained in the

Principles on European Family Law (PELF)20, which are absolutely non-binding for the Member

States, but from which national legislators often draw voluntarily in view of family law reforms.

Finally, there is the essential activity of Europeanisation of family law carried out by the Court of

Justice of the European Union and by the European Court of Human Rights21.

(2) EU instruments: Regulation (EU) 2016/1191; Regulation (EU) 2019/2016; Directive

2004/38/EC; Directive 2003/86/EC.

European family law instruments, which mainly shows the character of procedural rules and conflict

rules, are based on the assumption that in a civilised country the personal and family status of a person

is usually established by means of identity documents issued on the basis of the civil status records

of the nation's state of origin. 22

16 V.T. Krugger, ‘Partners limping across borders’, in I. Kunda, Family and children: European expectations and National

reality, Pravni fakultet u Rijeci, Hrvatka udruga za poredbeno pravo, Rijeka, 2014, p. 185 ss. 17 See, for example: Sandra Winkler, ‘Il diritto di famiglia’, Temi ed istituti di diritto privato dell’Unione Europea,

Giappichelli, 2017, p. 293; L. Tomasi, La tutela degli status familiari nel diritto dell’Unione europea, Padova, 2007; E.

Ioriatti, ‘È auspicabile l’armonizzazione del diritto di famiglia?’, La famiglia senza frontiere, Trento, 2006, pp. 169 ss. 18 Some example are Articles 3 TEU and 22 of the Charter of Fundamental Rights of the European Union, which protect

the principle of non-discrimination and cultural diversity; Article 6 TEU that values among the general principles of the

European Union those enshrined in the ECHR which, in Article 8 thereof, protects family and private life, together with

Article 7 of the Charter of Fundamental Rights of the European Union; Article 9 of the Charter of Fundamental Rights

which emphasizes a broader concept of the family, no longer based solely on the union of a man and a woman, although

it refers to national rights as the specific legal framework; and Article 24 protecting the rights of the child. 19 CEFL consists of approximately 26 distinguished experts in the field of family and comparative law from all European

Union Member States and other European countries. 20 Principle of European Family Law Regarding Parental Responsibilities, Cambridge-Antwerp-Portland, 2007. 21 see infra, Chapter II, Paragraph 3. 22 In these terms, for example, the Court of Trento, by order, 20.08.2014.


On the basis of this premise, let us consider the Regulation (EU) 2016/1191 of the European

Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by

simplifying the requirements for presenting certain public documents in the European Union and

amending Regulation (EU) No 1024/2012.

Its purpose is to ensure and facilitate the verification of certain facts concerning a person from one

nation to another (such as birth, existence in life, name, marriage, including the capacity to contract

marriage, marital status, divorce, registered partnership, parenthood, adoption, etc).23

However, it does not alter the substantive law of the Member States in regard to the determination

and legal classification of such facts; it does not oblige States to issue public documents not provided

for under national law, and it does not imply recognition in one Member State of the legal effects

relating to the content of a public document issued by another Member State.24

This Regulation shall not apply to public documents issued by the authorities of third countries25, for

which, where appropriate, the Hague Apostille Convention of 5 October 1961 on the Abolition of the

Legalisation of Foreign Public Acts shall apply.

Another example of relevant legislation in this area is the Council Regulation (EU) 2019/1111 of 25

June 2019 on the jurisdiction, the recognition and enforcement of decisions in matrimonial matters

and the matters of parental responsibility, and on international child abduction (recast).26

This Regulation should promote stronger legal certainty and increased flexibility, as well as ensuring

better access to court proceedings and greater efficiency of such proceedings, as it «establishes

uniform jurisdiction rules for divorce, legal separation and marriage annulment as well as for disputes

about parental responsibility with an international element. It facilitates the circulation of decisions,

as well as of authentic instruments and certain agreements, in the Union by laying down provisions

on their recognition and enforcement in the other Member States. Moreover, this Regulation clarifies

the child's right to be provided with an opportunity to express his or her views in proceedings to which

he or she is subject and also contains provisions complementing the Hague Convention of 25 October

1980 on the Civil Aspects of International Child Abduction ('the 1980 Hague Convention') in relations

between the Member States».27

23 6th and 19th recitals EU Regulation 2016/1191. 24 7th and 18th recitals abovementioned EU Reg. 2016/1191. Compare, for example, to the note from the prefecture of

Ancona available in www.prefettura.it/ancona/contenuti/45047.htm 25 48th recitals abovementioned EU Reg. 2016/1191. 26 This Regulation is intended to replace Regulation 2201/2003, so-called Brussels II-bis, and it will be applied in all

Member States of the European Union (with the exception of Denmark) from 1st August 2022. 27 2nd recitals EU Regulation 2019/1111.

http://www.prefettura.it/ancona/contenuti/45047.htm


However, as with the EU Regulation 2016/1191, the abovementioned Regulation does not imply the

recognition in one Member State of the intrinsic legal effects of a document issued by another State.

The document has the only purpose of guaranteeing the fundamental freedoms of people established

by the Treaties, including the free movement of citizens, in fact, a violation of this provision on

vulnerable people would block the circulation of the decision within the European Union. 28

Another important piece of legislation in this area, which directly concerns the free movement of

individuals, is the right to family reunification of Community nationals – Directive 2004/38/EC of

the European Parliament and of the Council of 29 April 200429; and of non-Community nationals,

members of the family of people holding a residence permit – Council Directive 2003/86/EC of 22

September 2003 on the right to family reunification.30

This right is granted to people who demonstrate their legal status as family members, and if the family

relationship is closer, it will offer a greater guarantee of satisfaction of the right to family

rapprochement.31 A special feature of the Directive 2003/86/EC is that polygamous marriage is not

recognised, and the right to family reunification may therefore only be guaranteed to a single spouse,

with the exclusion of other spouses’ children, unless family reunification would be in the best interest

of said children, in accordance with the Convention on the Rights of the Child of 1989.32

(3) Some problematic cases.

As already underlined, the EU Court of Justice (thanks to the instrument of preliminary referral33)

and the European Court of Human Rights (thanks to the instruments of individuals appeal and the

advisory opinions34), have a fundamental role in the process of Europeanisation of family law.

Through this instrument, the Court of Justice has often affirmed and protected individual subjective

legal positions, in the application of the principles laid down in the TFEU in the field of European

nationality and non-discrimination.35

28 Compare Davide Piazzoni, Le famiglie transnazionali nell’Unione Europea. 29 On the right of citizens of the Union and their family members to move and reside freely within the territory of the

Member States amending Regulation (EEC) No 1612/68. 30 This Directive does not apply to Ireland, Denmark and the United Kingdom. It also is not in conflict with any more

favourable conditions recognised by national legislation. 31 Compare articles 2 and 3 of directive 2004/38/CE and article 4 of directive 2003/86/CE. 32 This Directive also allows EU countries to provide for a minimum age for non-EU nationals and their spouses (not

exceeding 21 years of age) before they can exercise their right to family reunification. 33 Articles 19, paragraph 3, point b) of the Treaty on European Union and 267 of the Treaty on the Functioning of the

European Union. 34 Thanks to Protocol No. 16 annexed to the ECHR, that allows the highest jurisdictions of a High Contracting Party to

request to the European Court of Human Rights (ECHR) advisory opinions on matters of principle relating to the

interpretation or application of the rights and freedoms defined by the Convention or its Protocols. 35 The Court of Justice has consistently held that citizens of the European Union must be accorded the same legal treatment

in all Member States as nationals of the same State who are in the same situation. See, for example, Court of Justice of

the European Union, 21.07.2011, C-503/09, Lucy Stewart v. Secretary of State for Work and Pensions, and Court of


However, there are still very problematic cases concerning the recognition of the personal and family

status of persons in transit from one State to another in the European Union.

Let’s analyse some of these cases and of the solutions offered by the Court of Justice, about:

- Legal recognition of same-sex couples. Within the European Union, not all states recognise same-

sex marriage, in fact out of 28 countries homosexual marriage is prohibited in 6 by their

Constitution.36

However, the Court of Justice of the European Union has recently ruled on a family reunification

case pending in a State where a same-sex couple is not recognised (Romania).37

In the direct application of Article 21.1 TFEU and in the analogous application of Directive

2004/38/EC on the right of Union nationals and their family members to move and reside freely

within the territory of the Member States, the Court of Justice established that it is contrary to

European Union law to refuse to recognise same-sex marriages for the protection of national public

order when the link with the State of the celebration of marriage is real and the couple's residence is

not limited to the time of celebration of the marriage.

In this way, the Court of Justice emphasized the factual situation arising from the specific case,

avoiding circumvention of national substantive law as well as guaranteeing protection to equal

treatment and the right of free movement of European nationals.

The Court held that the recognition of the marriage obligation for the purposes of residence did not

constitute a sufficiently serious threat to the fundamental interests of society, protected by the

principle of public order, because it did not oblige the State to amend its national legislation.

On the other hand, its failure to recognise it was an infringement of a fundamental right conferred by

the Treaties.

- Surrogate motherhood: Surrogacy is prohibited in many States, while it is granted under certain

conditions38 and on the basis of specific regulations, by other States, such as the United Kingdom,

the Netherlands, the United States (but not all of its member states), Greece, Portugal, Albania,

Georgia, Ukraine and Russia.

On this issue, the European Court of Human Rights recently released its first Advisory Opinion under

the new Protocol No. 16 to the European Convention on Human Rights on "the recognition in the

Justice of the European Union, 2/10/ 2003, C-148/02, Garcia Avello; Court of Justice of the European Union, 10/10/2008,

C-353/06, Grunkin-Paul, about transnational protection of the person’s identity, through the protection of the name. 36 Compare Emanuele Coen, “Un’Europa divisa in due”, in L’Espresso. 37 Court of Justice of the European Union, Grand chamber, 05/06/2018, C-673/16, Coman v. Inspectoratul General pentru

Imigrări and Ministerul Afacerilor Interne. 38 In Greece only heterosexual couples and single women are allowed. See Rossella Anitori E Darel Di Gregorio, ‘Nella

Grecia del turismo procreativo, dove la maternità surrogata è legale per tutti’, in L’Espresso, 17 October 2019.


domestic law of a legal parent-child relationship between a child born through a gestational surrogacy

arrangement abroad and the intended mother”39 in the case of a French couple.

In 2000 the twins of the couple were born via gestational surrogacy, using the gametes of the father

and the oocytes of a third-party donor in California where, unlike France, the procedure is legal.

Since then, the couple has been demanding in vain for the transcription into the French register of the

birth records of the twins provided by the USA, in which Sylvie and Dominique Mennesson appear

as the only parents.

The Court of Strasbourg, in this regard, considered that the parent-child relationship with the 'intended

mother' was to be recognized in order to guarantee the child's right to respect for private life, leaving

to the different States the freedom to choose the means of recognition of such parent-child

relationship: whether by the entry in the register of births or by adoption by the non-biological mother,

through a law that offers the possibility of a legal parent-child relationship between the child and

those who had wanted and raised the child yet had not given birth to said child.

These and many others are the problematic cases brought to the attention of the European Court in

order to harmonize family law and the free movement of status within the European Union.

III. Case law solutions.

(1) Case law in Italy: the limit of public policy and fundamental rights.

In the Italian system, such as in other juridical systems, the recognition of foreign decisions or orders,

both judicial and administrative, is limited by the international public policy clause. This latter also

applies to the recognition of family statuses: an act (for instance a marriage one) or a judicial decision

(for example a paternity disavowal one) cannot be recognised whether they produce effects against

the international public policy. For the sake of clarity, it is important to note straight away that the

adjective 'international' identifies the function of the clause, instead of its origin, in order to

differentiate it from the 'inner' public policy clause, which is a limit to the private autonomy of

contracting parties. Therefore –and that is true in all the systems–, the international public policy is,

at all, neither a trans- nor a meta-national concept, but it is, by contrast, a very domestic law one.

According to the scholarly40, four are the main elements within the international public policy clause.

First of all, it is exceptional and negative, because it is an exception to the general rule of mutual

recognition of foreign acts and decisions, and it takes place only where their effects are inconsistent

with the fundamental values of the national legal system. Moreover, it is relative and indeterminate.

39 European Court of Human Right, 10 April 2019, advisory opinion P16-2018-001 Sylvie and Dominique Mennesson. 40 On the notion of ‘international public policy’ in Italy see, among the others, V. Barba, ‘L’ordine pubblico interazionale’,

Rassegna di diritto civile (Rass.dir.civ.) (2018), at 403 ff.


‘Relative’ means that it is susceptible to deep transformations both in time and space: for instance,

the indissolubility of marriage principle was so considered until the introduction of divorce in Italy

in 1970. On the other hand, its indeterminateness derives from the fact that it cannot be typified a

priori: in other words, ‘public policy’ is a general clause, to which the judicial interpretation of

national legal system values gives a meaning.

Therefore, according to the interpretation of the Corte di Cassazione (the Italian supreme court), the

notion of ‘international public policy’ has changed over the years. Regarding the issue of the

circulation of family status, it passed from a so-called ‘defensive meaning’ to a ‘conciliatory’ one.

According to the first one41, the clause aimed to preserve the inner legal system’s values and the

effects of a foreign act had to be compared on the basis of the national regulation. If an act or a judicial

decision had effects that the national law could not produce, they could not be recognised.

This notion of ‘international public policy’ changed, progressively, due to the integration of the Italian

legal system into both international and supranational ones (such as the European Union and the

Council of Europe). As an effect, the parameter deriving from the inner law dwindled in favour of

enhancement of other two: on the one side, the legal values shared by the international community;

on the other one, the fundamental human rights. Thus, the limits of ‘international public policy’ have

to be identified in fundamental principles outlined in the Constitution and, only where compatible,

both in the ECHR and the Charter of Fundamental Rights of the European Union (CFR)42.

In this framework, the application of the ‘international public policy’ limit was recently innovated by

the Corte di Cassazione precisely in the field of circulation of family statuses, specifically with

respect to the surrogate motherhood and heterologous fecundation.

In 2009 two women, R.V.M. (Spanish citizen) and L.M.B (Italian citizen), married in Spain. Two

years later, in this country, their child T. was born. Its birth certificate attests that it is the son of both.

Indeed, it was conceived through heterologous fecundation, for which R.V.M. (mother 'A') carried

the pregnancy and L.M.B. (mother 'B') provided ova. The baby, a Spanish citizen, has had the family

name of both.

Afterwards, the mothers required the registration of the certificate in Italy, but the registrar refused it

due to the international public policy. In 2013, R.V.M. and L.M.B divorced: their son was in shared

custody.

They applied the first instance Court against the registrar's act of rejection, asking for the recognition

and the consequential acquisition of Italian citizenship. This Court rejected the application.

41 Cass., Sez. un., 8 gennaio 1981, n. 189; Cass., Sez. un., 19 maggio 1964, n. 1220. 42 Cass., Sez. III, 22/08/2013, n. 19405; Cass., Sez. lav., 19/ 07/2007, n. 16017.


Conversely, it was granted by the Court of Appeal. This latter asserted that the registration of the

certificate was compliant with public policy, for two reasons. On the one hand, the Court affirmed

that unions between persons of the same sex are not against public policy: despite in the Italian system

the marriage requires the gender difference of the marring couple, according to the Art. 2 Const., the

same-sex families have to receive protection, as well43. On the other hand, in the matter of parenthood,

the biological relation has progressively lost importance; instead, the profiles of both the

voluntariness and the parental responsibility have assumed great relevance. Furthermore, the rejection

was considered at odds with the best interest of the child to maintain the relationship with both the

mothers, infringing its right to personal identity.

The Corte di Cassazione44 confirmed this decision. According to it, the rule (set forth by the Art. 269

Civil Code) that only who gives birth is the mother cannot be considered a fundamental constitutional

principle, and, therefore, it does not shape the international public policy. Moreover, in the Italian

legal system is not forbidden for a same-sex couple to raise a child: the right to self-determination

and to found a family must be recognised in a non-discriminatory way. The Court highlighted that

the case cannot be considered a hypothesis of surrogate motherhood, as well: T. was born in couple’s

parenting project, through a method comparable to the heterologous fecundation, from which it

diversifies being the foetus biologically connected with both the women. Consequently, the

occurrence that this method is not recognised by the Italian law does not mean it does not comply

with the international public policy because it does not infringe, per se, a fundamental value of the

national legal system.

In a similar case, recently, the Court pointed out his line of interpretation.

In 2008 two men, T. (Canadian citizen) and C. (Italian citizen), married in Canada. In 2010, S. and

M., twin brothers, were born in Canada: they were generated by medically assisted procreation, in

which T. provided spermatozoa, a woman had her ova harvested and another one carried the

pregnancy. Then, in 2011, the Ontario Superior Court of Justice declared that the woman who carried

the pregnancy was not a parent and that S. and M. were sons of T. and C., ordering for amending the

birth certificates.

Five years later, the Italian registrar refused to transcribe it due to international public policy. The

Court of Appeal granted the couple’s application against the rejection. According to it, the best

interest of children for earning and preserving the status of sons is surely a fundamental human right

that has to be protected; it would be infringed if the exercise of parental responsibility, set forth by a

43 Italy has recognised same-sex civil unions (in Italian, unione civile) since 2016, through the Law no. 76, providing

same-sex couples with most of the legal protections enjoyed by opposite-sex married couples. 44 Cass., Sez. I, 30/09/2016, n. 19599


legally-given Canadian judicial decision, would be prevented to one of the two fathers. The judges

highlighted also that, according to the ECtHR’s interpretation, every country can regulate at the

discretion about the medically assisted procreation. Therefore, it does not matter whether the

Canadian law conflict with the Italian one, which forbids the surrogate motherhood: this latter is an

expression neither of national constitutional fundamental values, neither of international nor

supranational ones. Indeed, the Italian legal system has abandoned a biological-only parental model,

accepting instead one in which the parental responsibility derives from the aware decision to rise and

look after a child.

The Cassazione did not share the Court of Appeal's opinion. It deemed that, if it is undisputed the

notion of international public policy as a synthesis between fundamental constitutional inner values

and both international and supranational ones, nonetheless it is influenced by the social-economic-

and politic evolution of society, due to its relativeness and indeterminacy. Thus, it has to be read, a

fortiori, in the light of national regulation of legal institutions, that are its expressions, as well as

realizations and embodiments of constitutional rights.

As a result, according to the Corte di Cassazione, the aforesaid legal precedent cannot be applied in

the present case, because it concerns the attribution of a status filiationis in respect to a person that is

in no way biologically related with the children. Indeed, if the Italian law prohibits both the

heterologous fertilization in same-sex couple and the surrogate motherhood, this latter is more

severely sanctioned. In the first case, the violation is punished with an administrative sanction, in the

second one with criminal penalties. This is because the prescription preserves fundamental human

rights, such as the human dignity of the mother-to-be and the institution of adoption. In particular,

this latter is regulated so that it safeguards several interests, first of all, the minor’s one, and not only

the mere agreement between the parties. Therefore, in the Italian legal system, it has to be considered

the only way for establishing a non-biological parental relationship.

(2) Case law in the other EU Member States.

Issues regarding the circulation of status familiae, and particularly of status filiationis, have been

handled by other EU Member States’ Courts, as well.

Just as an instance, recently the Assemblée plénière of the Cour de Cassation (the French Supreme

Court)45 decided a case about the transcription of a certificate of a child born through surrogacy.

In 2000 a French married opposite-sex couple formed by P. and J. resorted to surrogate motherhood

technique in the U.S.A. In the same year, T. and C. were born. Their birth certificates were issued

pursuant to the case-law of the Supreme Court of California: P., that provided spermatozoa, was listed

45 Cour de Cassation, Assemblée plénière, Arrêt n. 648 du 4 octobre 2019 (10-19.053)


as “father” and J. as “legal mother”. These acts were transcribed in France, but, at a later time, the

registration was nullified at the initiative of the Ministry of the Interior because the technique is illegal

there.

In 2011, P. and J. resorted to the Cour de Cassation, that rejected the application. The case was

brought before the ECtHR, that condemned France for violation of the right to respect for minors’

private and family life (Art. 8 ECHR). As a consequence, in 2018 the Cour de Cassation reviewed

the cause, requesting an opinion to the ECtHR about the legal possibilities for granting parental

relationship between children and the non-biological ‘intentional mother’ J. According to the ECtHR,

the relationship can be established, but it is at the discretion of the State to decide how to regulate it.

Deciding the case, the Assemblée plénière reaffirmed that in France the gestation pour autrui (GPA)

is prohibited. Nonetheless, the court highlighted that the best interest of the minors had to be preserved

in every case. Thus, it decided for a case-by-case approach: the judge has to decide the

appropriateness for recognising the parental relationship exclusively on account of the minors' best

interest. In a particular case, because this bond had lasted more than 19 years, there was no best way

to protect the children's right than recognise the relationship.

To take another example, a recent decision of the Bundesgerichtshof (the German Federal Supreme

Court) in a similar case46 can be mentioned. In a partially different way from the Italian and French

one, the German court has committed to an approach that put always first the minor’s best interest,

stressing an interpretation already provided four years before. According to it, the § 1591 BGB, which

sets forth that who gives birth is the mother, is not a public policy rule and does not preclude for

recognising a foreign decision that grants parental relationship between a surrogacy-born child and

the non-biological ‘intentional mother’.

Pursuant the Bundesgerichtshof’s interpretation, the self-determination of the biological mother-to-

be is diriment. In the particular case, the voluntary nature of the surrogacy agreement can be excluded

neither by the fact that the biological mother-to-be received an amount of money nor by the social

gap between her and the couple: she carried the pregnancy due to the agreement. In this perspective,

if the recognition would be denied, a situation breaching child’s rights would be caused. On the one

hand, it would be not able to plead against the birth mother because in her home State the surrogate

motherhood is legal and, hence, she is not bound by the parental responsibility; on the other hand, the

parental relationship with the couple would be impeded, as well.

Thus, the German court concluded for the recognition. For the sake of completeness, one should

emphasise that, in this case, one of the partners provided spermatozoa and was biologically linked

46 Decision 5th September 2018, cause XII ZB 224/17.


with the child. The Bundesgerichtshof has left open the legal question of the case in which none of

the ‘intentional’ parents is biologically related to the child.

(3) The importance of effective family life; an example: ECJ, Grand Chambre, 26th March

2019: Case C-129/18.

As regards the European case-law in the matter of status circulation, it should be noted that the

effectiveness of family life is a key parameter in the ECJ’s interpretation: thus, in general terms, the

best interest of the child to retain the status amounts to a counter-limit against international public

policy clause every time. Therefore, the effectiveness of the family relationship has to be considered

as a general criterion, even where there is no coincidence between foreign and inner statuses.

As an example, a married couple of French citizens, residing in the United Kingdom, requested the

permission to enter for their adopted Algerian daughter, abandoned by her biological parents. As a

matter of fact, she was entrusted to them in kafala47, which is an Islamic institute for the family

custody: according to the Sharia law, adoption is indeed prohibited because it severs definitively the

bonds with the biological family. Thus, this kind of relationship does not create parental tie but instead

child custody.

Therefore, the Supreme Court of United Kingdom preliminarily referred to the ECJ, asking if,

pursuant to the Articles 2 no. 2) let. c), 27 and 35 of the Directive 2004/38/EC –regarding the free

movement and stay right of EU citizens and their relatives–, the kafala relationship amounts to a case

of direct descendants. Only for them, the right of entry is automatically recognised; conversely, in

any other case of family relationship, it is subject to a case-by-case examination of the situation.

The ECJ48 deemed the kafala does not amount to a direct descendant and, hence, the so-entrusted

minor falls within the notion of ‘other family member’. Thus, the regulation of its condition is left to

Member States’ discretion, to be exercised however both in accordance with the CFR and,

particularly, pursuant to the right to respect for private and family life.

47 From the judgement in case C-129/18, SM v Entry Clearance Officer, UK Visa Section, on www.curia.europa.eu:

“under Algerian law, kafala is where an adult undertakes to assume responsibility for the care, education and protection

of a child in the same way as a parent would for their child, and to assume legal guardianship of that child. Unlike

adoption, which is prohibited by Algerian law, the placing of a child under kafala does not mean that the child becomes

the guardian’s heir. In addition, kafala comes to an end when the child attains the age of majority and may be revoked

at the request of the biological parents or the guardian”. 48 ECJ 26th March 2019 C-129/18

http://www.curia.europa.eu/


IV. A common perspective: is it possible?

(1) Critical aspects and Proposals: International and EU perspective.

The free circulation of statuses in the EU common area can be guaranteed only coordinating different

views about family identities and personal interests, as well as, in some cases, going beyond

traditional legal institutes. Many authors hypothesized several pathways aimed to prevent intra-EU

conflicts of family statuses, but the main issues are represented by the need to find a balancing point

between enforcing individual’s right for status recognition and the fundamental national values, quite

often conflicting each other, as seen, for example, regarding the surrogate motherhood.

The dialogue among legal systems, useful to overcome differences, apparently insurmountable, and

to ensure effective protection, can be encouraged and facilitated, but not hetero-directed in its own

concrete application.

Therefore, in a supranational perspective, the first level of protection should be achieved by boosting

the potential of existing tools, often unused: for example, the consultation procedure referred to in

art. 33 of Hague Convention49, which would be useful to prevent conflicts since their beginning.

Moreover, at the supranational level, it’ s important to report that the Hague Conference on Private

International Law has started three sister projects in the matter of cohabitation outside marriage,

family agreements involving children, as well as parentage and surrogacy, with the aim of identifying

common guidelines in the circulation of statuses.

The group of experts set up by the Hague Conference on Private International Law, in its report of

March 201950, acknowledged that they have not yet succeeded in arriving at a shared text, adapt to

be offered to States for signature while recognizing the opportunity and importance of ensuring

predictability, certainty and continuity in parenting (in particular, that resulting from surrogacy in

international situations). The report hopes for the development of a binding multilateral instrument

covering both uniform material rules and procedural rules for the cross-border recognition of the

relevant judicial decisions.

So, aware of the critical issues related to this matter and

hypothesizing new perspective of protection, it might be useful to promote an anthropological and

social observation of the behaviour of individuals within European (and also extra-European) States51,

49 It says that “a competent authority which finds that any provision of the Convention has not been respected or that

there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This

Central Authority shall be responsible for ensuring that appropriate measures are taken”. 50 Available at www.hcch.net. 51 Like moreover the Commission on European Family Law (CEFL) has already partly done (see chapter 1 para. 1). There

are also countless studies such as, for example, Janet Carsten, “Constitutive knowledge: tracing trajectories of information

in new contexts of relatedness” in Project Muse – Scholarly journals online.

http://www.hcch.net/


regarding very personal, private and couple choices, so as to create a constantly updated handbook -

vademecum, which registers the various realities, to whom legal protection may be provided, for

example, based on an optional substantive regulation accessible to all citizens; 52 or employing

provisions of private material international law which could ensure that cases with elements of

internationality are governed by rules other than those which would be obtained by recourse to

ordinary rules of private international law since they describe, for each individual case, directly the

legal consequences which they have.

It could also be envisaged that, on the basis of the principle of non-discrimination, each European

citizen may freely choose to apply the optional European law in addition or substitution (if more

favourable) of the substantive rules of his State of origin, and that this discipline can be recognized

in any Member State (and also outside if the various conventions applicable with non-European states

allow it), on the basis of a declaration of compliance with European legislation.

In the case of denial of the said declaration, it could be provided with a subsequent and possible final

control of the EU Court of Justice; or, where this statement appears to be untrue, the Member States

could be allowed to carry out checks on the specific case on an objective basis.

But how could the EU actually achieve such legislation in family law?53

There is no doubt that there is resistance from the Member States not only to uniformalize but also to

harmonise family law with cross-border implications, if not on condition that they unanimously share

these measures.54

The sensitive nature of the issues dealt with and the different perspectives existing between the

Member States, in fact, have made it difficult to harmonize them, which, however, could gradually

52 This solution was also mentioned by Sandra Winkler, ‘Il diritto di famiglia’, Temi ed istituti di diritto privato

dell’Unione Europea, Giappichelli, 2017, cited above, p. 396, and by Romano, ‘Conflicts and coordination of family

statuses: toward their recognition within the EU?’, in European Parliament, Adoption: cross-border legal issues (2015),

17, at 41 ff. 53 The EU has concurrent competence with that of the Member States in the area of freedom, security, and justice, where

the EU has been mandated by the Treaties to develop judicial cooperation in civil matters (including the family) with

cross-border implications. The exercise of this competence may take three main forms:

1) The EU may adopt measures at EU level (Article 81 TFEU);

2) The EU may authorize the Member States to establish measures relating to family law

(Article 20 TEU);

3) It is also conceivable that this competence can be exercised through the participation of the EU in the international

instruments of family law with a wider scope than in the EU region (Article 216 TFEU).

See Aude Fiorini, Quale base giuridica per il diritto di famiglia? Prospettive per il futuro, European Parliament,

manuscript completed in November 2012. 54 See art. 81 para. 3 TUFE, in the field of judicial cooperation in civil matters, concerning the area of freedom, security,

and justice in the EU it is a mechanism which has made it difficult to adopt EU legislation on family relations with cross-

border implications. In fact, in many cases, the Member States have already preferred to enhanced cooperation. For

example in the case of Regulation (EU) No 1259/2010 on the implementation of enhanced cooperation in the area of the

law applicable to divorce and legal separation. See at this regard Gianpaolo Maria Ruotolo, “Il diritto internazionale

privato italiano delle “nuove” famiglie nel contesto europeo”, in Questione Giustizia, rivista trimestrale, fascicolo 2/2019.


take place, for example, through the instrument (with the nature of "last resort") of the enhanced

cooperation referred to in Art. 20 of the TEU.

In this way, a group of Member States can establish measures within them (using the institutions and

mechanisms of the TEU).55

The regulations thus adopted are, however, by definition, incapable of achieving the objectives

assigned to EU action in the field of family law, in any event, it may be appropriate to achieve a

certain level of harmonization between some participating States, rather than none, with an impact

not only on the beneficiary EU citizens but also on those who do not benefit directly from it but who

could benefit from it, for example, through the principle of non-discrimination.

Another instrument that could be used in this respect is the one provided for in Article 216 TFEU

through the participation of the EU in the international instruments of family law with a broader scope

than the EU region; however, even outside Europe, there is considerable friction in this area, as

underlined by the Hague Conference group of experts.

As far as regards the European Union, the best solution could be, perhaps, common legislation on

statuses, that centralises their regulation at European level, eliminating differences between the

Member States by identifying a common system. Nonetheless, this should be considered an end goal

rather than a starting point: the integration level and the sharing of values between European countries

disallow, under the present circumstances, an EU centralisation of the regulation of statuses.

Thus, it would be better to take a progressive four-step approach56.

The first step, limited to the soft-law level, could aim to draw a European comparative chart of

statuses, that allows for certain to know which are prerequisite for acquiring a status, to which

originating State’s fundamental national values it refers to, and the reasons of potential obstacles in

the receiving State in recognising it.

The subsequent one could be to pinpoint some compulsory hypothesises of statuses recognition in

some ‘strong’ cases in which the receiving State cannot refuse it, limiting the international public

policy functioning. These ‘strong’ cases are those in which a status originated in a State with which

the individual concerned has a sufficient geographical connection. This option allows balancing

individual right to retain a status with the necessity to prevent a ‘status legal tourism’. Thus, for

instance, if Tom was born through surrogacy in Greece, where this is legally permitted, and was

declared the legal son of Maria (Italian-citizen ‘intentional’ mother) and Harry (Greek-citizen father

providing spermatozoa), the Italian registrar cannot refuse in any case the registration of the birth

55 See Aude Fiorini, Quale base giuridica per il diritto di famiglia? Prospettive per il futuro, above mentioned. 56 Romano, ‘Conflicts and coordination of family statuses: toward their recognition within the EU?’, in European

Parliament, Adoption: cross-border legal issues (2015), 17, at 35 ff.


certificate, because one of his parents had a ‘strong’ connection with the place where surrogacy

agreement took place.

The penultimate step regards the establishment of an EU central authority, committed to deciding any

conflict on statuses recognition between the Member States on a European international public policy

concept based on the CFR.

The last one is the above-cited European regulation of statuses circulation, mandatory for each State.

(2) Familia ante omnia: conclusions.

The issues analysed in the previous chapters have highlighted the importance of statuses, in order to

make effective the movement of people and their rights, but also the limits of a system like this and

the need of effective protection particularly felt in the field of family law, which has peculiar

characteristics among the other branches of law.

As Arturo Carlo Jemolo said, Family is an island that only has to be lapped by the sea of law.

This does not mean justifying an unreasonable lack of protection, but it means valuing the choices of

individuals involved in family ties, without impositions that would risk coercing self-determination

in its most intimate sphere and modelling legal institutions in the most appropriate way, in order to

achieve authentic justice.

As Francesco Guccini sings57:

“La casa sul confine dei ricordi, “The house on the border of memories,

La stessa sempre, come tu la sai always the same, as you know it

E tu ricerchi là le tue radici and you must search there your roots

Se vuoi capire l’ anima che hai” if you want to understand your soul”

57 Francesco Guccini, Radici, 1972

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