Credits to
Maria Rosaria Donnarumma

The best interest of the child and a warning to the legislator on ethically sensitive issues

Issue 4/2021

Abstract. The Constitutional Court, in two recent judgments of 2021 (no. 32 and no. 33), intervened on ethically sensitive issues, such as heterologous fertilization and “surrogate” motherhood, addressing a harsh warning to the legislator to fill the regulatory gap without delay. This in the light of an evolutionary reading of the constitutional text, in the name of protecting the best interest of the child.
It is therefore legitimate to question the possible developments of the Court’s jurisprudence, when questioned again in the presence of persistent legislative immobility, and nothing excludes that this time the judge will intervene by adopting the innovative decision-making technique inaugurated in the “Cappato” case.

SUMMARY: 1. Introduction. – 2. The judgment of the Constitutional Court no. 32 of 2021. Female homosexual couples and heterologous fertilization, the «no longer tolerable» inertia of the legislator. – 3. The judgment of the Constitutional Court no. 33 of 2021. “Surrogate” motherhood, parental responsibility, the intervention of the legislator «no longer deferrable». – 4. Concluding remarks. Possible developments of the constitutional jurisprudence in case of persistent immobility of the legislator.


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