Italy's highest court has ruled that the non-biological father of two children born through surrogacy overseas cannot be named as the children's legal parent.

According to The Local, the same-sex couple, who have not been identified, had their children in Canada with the help of a surrogate and an egg donor. Despite both men being listed as the legal parents on the children's Canadian birth certificates, Italy's Court of Cassation ruled that only the genetic father could be listed as the children's legal parent in Italy, overturning a 2017 lower court decision in the couple's favour.

The court said that its decision was made in order to 'protect the dignity of pregnant women and the institution of adoption'. The ruling means that the father whose sperm was not used will have to apply for adoption in order to become his children's legal parent. 

Italian laws around the use of assisted conception and surrogacy are some of the most restrictive in Europe. Surrogacy is illegal in the country and while same-sex civil partnerships are now permitted, the legal status of same-sex adoption is unclear. Italian legislation appears to restrict adoption to married heterosexual couples, however, a number of court decisions have permitted same-sex adoption in the child's 'best interests'.

The couple's lawyer, Alexander Schuster, said that since the wording of the decision applies to the non-genetic parent of any child born through surrogacy regardless of sexual orientation, the court's ruling could have wider implications for all Italian couples involved in surrogacy using donor gametes.

Schuster added that any appeal made by the couple to the European Court of Human Rights by the couple would have a 'high probability of success', although it is not clear at this stage if the couple intends to do so.

The European Court of Human Rights has previously criticised the Italian government for removing a child born through surrogacy in Russia from the parents and ordered it to pay compensation.

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Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.