La fecondazione eterologa e le coppie omoaffettive nel sistema italiano: prospettive di tutela del nato

As is well known, art. 5 of l. n. 40/2004 provides, as a subjective requirement for access to assisted reproduction techniques, the sex difference of the applicant couple, thus formally excluding homoaffective couples from heterologous fertilization procedures. However, this has fuelled the so-called procreative tourism, encouraging such couples to travel to foreign countries, whose laws don’t provide for such a subjective limit. From the point of view of the best interests of the child, in the context of the Italian legal system, the problem arises of protecting the child born through M.A.P., performed abroad, by a same-sex couple. In particular, the need for protection emerge if, after birth, there was the will to recognise or constitute in Italy the status of the minor as a child of the couple, or at least the will to attach giuridical relevance to the de facto parental relationship between the intentional parent and the child. This work is dedicated to the in-depth exploration of these problematic profiles.