October 2013 – The Court of Milan says that having a baby from a Ukrainian surrogate and registering him as the baby of the Italian intended parents is not a crime

Article by: Ida Parisi

An Italian couple decided to begin a surrogacy process with a Ukrainian private clinic in Kiev. In particular, they entered into a surrogacy agreement with Natasha and into an egg donor agreement with another woman. During the period of gestation, spent in Italy, the defendant used a pillow, to simulate a pregnant abdomen and just a week before the baby’s birth, the couple traveled to Ukraine to attend the birth. At that time, Natasha gave her consent to indicate on the birth certificate the intended parents as the legal parents, relinquishing in that way to all her parental rights.

As required by Ukrainian law, the birth certificate was issued by the registrar of Kiev and it was translated into Italian and provided with an apostille, to make it legal and authentic at international level.

At the time of the birth certificate’s transcription in Italy, the intended parents asked for the help of the Italian consular in Kiev and some problems arose. In fact, they decided to lie about the real birth’s conditions. They tried to simulate a natural pregnancy telling that it was occurred during a vacation in Ukraine. This created reasonable suspicions in the Italian consular officer who sent the documents to the Public Prosecutor’s office of Milan, to the central police station in Rome, to the Ministry of Interior and to the registrar of Milan.

However, the registrar of Milan transcripted the Ukrainian birth certificate as it had been issued by the registrar in Kiev, instead the Public Prosecutor of Milan, after having collected more information about the case, decided to indict the intended parents for the crime of change of marital status, pursuant to article 567, paragraph 2, of the Italian Criminal Code.

According to the Public Prosecutor of Milan, in fact, indicating on the birth certificate the intended mother as the legal mother of the child means alterating the marital status of the baby born from a surrogate. Article 567, at the paragraph 2, punishes with the imprisonment from five to fifteen years whoever changes the marital status of a newborn through fake certifications, fake attestations or other falsehoods, in the formation of the birth certificate.

The Public Prosecutor of Milan also stated that the birth certificate issued was totally in contrast with public order and so that it should have not been transcripted, pursuant to article 18 of the Decree no. 396/2000 that forbids the transcription in Italy of any document issued abroad and that results totally in contrast with the public order.

Usually in cases related to international private law, case law refers the notion of public order to the notion of international public order, and not to the internal one, as it happened in this case. And, in particular, according to the international public order, surrogacy cannot be considered illegal because it is a process which has been legalized in most of the European States and because the right to conceive a baby using the heterologous fecundation techniques is recognized by article 8 of the European Convention on Human Rights.

Moreover, as article 18 of the Decree no. 396/2000 says, the contrariety to public order is evaluated just in the moment of the document’s transcription and not when it is issued, and in this case the non contrariety to the international public order is understood in the fact that the registrar of Milan transcripted the birth certificate, so excluding this contrariety.

By the way, as far as the first point the Court of Milan acquitted the couple holding that they did not commit the crime of change of marital status. In fact, according to article 15 of the Decree no. 396/2000, Italian citizens must declare their birth or the birth of their child to the competent authorities and in accordance to the law of the country where they are at the moment of the declaration (lex loci).

Moreover, according to case law (Supreme Penal Court no. 35806/2008) the crime of change of marital status is constituted just when the fake certifications, fake attestations or other falsehoods are referred to the first official birth declaration. This means that all the fake declarations completed when the birth certificate has already been issued, can eventually amount to the crime of fake declarations about personal qualities punished by article 495, paragraph 2, of the Italian criminal code and not to the crime punished by article 567, paragraph 2, of the Italian criminal code.

So, according to the judges of the Court of Milan, in this case, the birth certificate was issued in accordance with the law of the country where the baby was born (i.e. Ukrainian law), so it is impossible to assume the birth certificate insincerity and its capacity to alter the marital status of the newborn. In fact, according to the Ukrainian law at the end of a surrogacy process, the intended mother, and not the surrogate or the egg donor, has to be indicated as the legal mother of the baby on the birth certificate.

It is evident that the intended parents’ way of acting did not constitute the crime of change of marital status because the objective element of that type of offence is missing. However, their conduct constitutes the different crime of fake declarations about personal qualities. According to this article, it is punished whoever makes insincere statements to a public official about his/her identity, his/her marital status or other different personal qualities or about someone else identity,  marital status or other different personal qualities. In particular, in this case, the intended parents simulated the fake natural pregnancy misleading the Consular officer.

But it also constitutes a common crime committed abroad, punishable, pursuant to article 9 of the Italian criminal code, by a minimum penalty of less than three years. And according to the Italian law when a person commits a crime abroad for which the minimum penalty applied is less than three years, it is requested, as a condition of admissibility of the trial, the request of the Minister of Justice, missing in this case. This is why the judges of the Court of Milan decided to dismiss the trial.

This case is very important because it shows how the Italian legal system, in particular at a case law level, is moving toward the legalization of this kind of agreements but the important question so far is: it is just a theoretical debate or it is a step toward the reality?

Time will give us the answer.