La tanto attesa decisione delle Sezioni Unite. Ordine pubblico versus superiore interesse del minore? Nota a Cass. S.U. 8 maggio 2019, n. 12193

This essay is a comment to the decision no. 12193/2019 of the United Chambers of the Supreme Court, that addresses the long standing problem of the contrariness to the public order of a foreign provision that declares a person to be the parent of twins born through a surrogacy procedure in a foreign country (so-called “intention parent”) even in lack of biological connection to the children. Assuming the extended notion of public order according the United Chambers of the Supreme Court, in continuity with the orientation of its case law concerning punitive damages, the essay focuses on the matter of surrogacy and the best interest of the minor. As reflected in the title, the essay challenges the fact that, as apparently formally stated in the grounds of the commented decision, the public order for the violation of the prohibition of surrogacy is considered a higher value than the one of the best interest of child, for several reasons. First of all, because the best interest of child is itself a principle of public order. Secondly, because it should be identified what the best interest of a child born by surrogacy is, and it cannot always be against the public order. Thirdly, because by suggesting stepchild adoption, the United Chambers of the Supreme Court seem to deny the above-described conflict. The conclusion of the essay is dedicated to some de iure condendo observations.