Surrogacy in the recent 'multilevel' case law

This paper examines the decision of the Italian Supreme Court, taken in plenary session on 8 May 2019, in which it dealt with the issue of surrogacy, with particular regard to the notion of international public policy. The Court concluded that the ban on surrogacy constitutes a principle of public order aimed at protecting fundamental values, such as the surrogate mother’s human dignity. This decision is consistent with the advisory opinion given in April 2019 by the European Court of Human Rights, upon request of the French Supreme Court in the context of the Mennesson case, that stated that each State has discretion to determine the modalities by which it guarantees the recognition of the parent-child relationship, including the possibility to adopt. Nonetheless, the difficulties in the application of public policy are apparent and the situations that it may bring about are equally complex, for instance, as a result of genetic ties being established with different persons. New solutions are, therefore, proposed, also in light of the most recent French case law.