Autore: Savarese, Eduardo
Titolo: 'What Is Done, Is Done': come non espugnare la filiazione internazionalprivatistica, ma armonizzarla con i diritti umani
Periodico: Diritti umani e diritto internazionale
Anno: 2020 - Volume: 14 - Fascicolo: 2 - Pagina iniziale: 265 - Pagina finale: 301

In the recent years, questions of parent-child, specifically when stemming from international surrogacyarrangements, have become highly controversial in domestic law systems, in private internationallaw and in human rights law as well. The recognition of child status is at the heart of a fundamentalstruggle of ideas and trends: on the one hand, recognition means stability in the human, socialand legal relationships of the concerned child and the aspiration to recognition tends to constitutelegal claims for the protection of human rights (of children and legal/intentional parents); on theother hand, surrogacy arrangements involve ethical and legal issues, which concern the dignity of thebiological mother and the child’s right to know his/her biological origin. The recent development ofthe Italian case-law in this subject matter perfectly shows such a process: in 2019, the Court of Cassation,by supporting a quite restrictive idea of the public policy exception, denied recognition toforeign judgements which stated parent-child in respect of both the biological and intentional parents,since surrogacy arrangements violate the Italian ordre public. In 2020, the same Court of Cassationhas considered its own interpretation at odds with the European Convention on human rightsand the Italian Constitution: thus, it submitted the question to the Constitutional Court. It is theauthor’s view that this is the time to find a reasonable dialogue between private international law andhuman rights law, a dialogue which starts to emerge if we compare the current UN work on theConvention on the Rights of the Child and the projects of conventions under examination at theHague Conference on Private International Law. This cross-fertilization between the exception ofordre public in private international law and human rights law also represents a form of cooperationbetween national sovereignty and fair international standards. For the purposes of this process therole of domestic judges is crucial: proper balancing general and rather abstract values with human,social and legal claims of justice is a task that can be carried out in a satisfactory manner by the singlejudge on the basis of the specific circumstances of each and every case.




SICI: 1971-7105(2020)14:2<265:'IDIDC>2.0.ZU;2-F
Testo completo: https://www.rivisteweb.it/download/article/10.12829/97956
Testo completo alternativo: https://www.rivisteweb.it/doi/10.12829/97956

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