Judgment No. 24369 of 2024: Litisconsortium and the Minor's Interest in Surrogacy

The recent judgment No. 24369 of the Court of Cassation, issued on July 3, 2024, has raised important questions regarding active and passive legitimacy in the proceedings for the rectification of civil status acts, particularly in the context of surrogacy. The Court addressed the issue of litisconsortium and the protection of the minor's interest, establishing fundamental principles for the correct interpretation of the current regulations.

The Case and the Decisions of the Judicial Levels

In the case at hand, D.D. and C.C., after having a daughter through medically assisted procreation, had registered the birth certificate in Italy. However, following the end of their relationship, the public prosecutor requested the rectification of the act, contesting C.C.'s parental status in the absence of a biological link to the minor. The Court of Appeal of Bari rejected the request, stating that the best interest of the child must prevail, maintaining the status of both parents.

The Court of Appeal agreed with the Tribunal that the paramount interest of the minor could only be achieved by preserving C.C.'s parental status.

The Issues of Legitimacy and Litisconsortium

The appeal highlighted the issue of the active legitimacy of the appellants, the minor's grandparents, who sought to intervene in the proceedings. The Court held that the right to act should be exclusively attributed to the public prosecutor, emphasizing that the appellants did not have a direct interest in the process. This aspect raised questions about the operation of litisconsortium and the interest to act in contexts of child protection. The Court reiterated that the rectification action must be promoted by those who have a direct and recognizable interest, thus excluding the possibility of action by the grandparents.

• Active legitimacy must concern only those subjects with a direct legal interest.
• The public prosecutor has the duty to protect the minor's interest, acting ex officio.
• The litisconsortium must be well defined to ensure the correct procedural dynamics.

Conclusions

Judgment No. 24369 of 2024 offers significant points for reflection on the importance of protecting the minor's interest in situations of legal complexity such as surrogacy. The Court's assertion that the public prosecutor must intervene to ensure the legality and truth of the parental relationship highlights the need for careful consideration of family dynamics and the rights of minors. In conclusion, this case represents an important step towards greater clarity and protection of minors' rights in the context of new modes of procreation.