Cases like this have happened before in Italy, where surrogacy is illegal and Italian couples face problems in having babies born to surrogates abroad legally recognized as their own. What's not common is the decision a court in Milan issued earlier this week: Despite being twins, the court said, the two boys aren't brothers.
At first a judge ruled against them, but the couple appealed and a new court partially granted their request. Because the men used separate semen samples to fertilize the eggs, the court said that each of them can now register his biological son as his own. But the babies cannot be recognized as children of the couple, nor are they to be considered brothers, even though they share the same genetic mother, who donated both eggs.
Despite this contradiction, Famiglie Arcobaleno, a nongovernmental organization advocating the rights of same-sex parents and their children, has hailed the court's decision as a “positive step.” “It's the first time that an Italian court has established that a child's best interest comes before [the legality of] how he or she was born”, the NGO's president, Marilena Grassadonia, told The Washington Post in a telephone interview. The group has helped the two men in their court case.
“The children's interest was to have a parent,” Grassadonia said. “Also, until now the babies were only U.S. citizens, but finally their fathers can pass their Italian citizenship to them.”
Italy has some of Europe's strictest reproductive laws. In vitro fertilization is limited to straight couples who are either married or who can prove they are in a “stable relationship,” and they must use their own eggs and sperm — donating either is also illegal along with surrogacy.
Although a law approved last year introduced civil partnerships for same-sex couples, they still cannot marry nor adopt. Even stepchild adoption is limited to heterosexual relationships, which also means the two fathers in Milan cannot adopt each other's child and explains why the babies cannot be considered brothers.
Surrogacy itself is stigmatized and referred to by the local media by the derogatory term “utero in affitto,” or “womb for rent.” Even after a child is born, there's no guarantee that its best interests will be more important than adhering to the ban. Italian authorities have gone so far as to take children away from their parents. Three years ago, a court in Cremona, a town in northern Italy, took a toddler away from his parents, a straight married couple, after it was discovered he was born in Ukraine to a surrogate mother. Another child born in Ukraine via a surrogate was separated from his family in the town of Brescia and was declared “adoptable” by the country's rough equivalent of the Supreme Court in 2014.
Grassadonia said the two twins in Milan were probably never in any real danger of being taken away from their fathers. Usually such extreme cases happen when parents resort to surrogacy in poor countries where authorities suspect surrogates are unfairly exploited, or when the parents lie about the way their babies were conceived.
NGOs such as Famiglie Arcobaleno, on the other hand, are working to help gay couples find surrogates in countries “where the rights of surrogates are respected,” Grassadonia said. “California and Canada are our preferred destinations.”