The evolution of the position of Italian Case law concerning public policy in transnational family matters, in view of some recent judgments of the Italian Court of Cassation and Constitutional Court

Abstract

The position held by the Italian case law concerning public policy in transnational family law matters has recently experienced some interesting developments, showing an enduring ambiguity between two different notions of public policy for the purposes of private international law, between a “truly international” conception of public policy, whereby it should be considered as purely limited to internationally shared legal principles, concerning especially the protection of fundamental rights, and a more traditional notion. According to the latter notion, public policy for the purposes of private international law shall be considered as embodying mostly national principles, identifying the fundamental attitude of the country at the relevant time, as reflected non only by its constitutional rules, but also by the rules embodied in domestic legislation, insofar as these translate into concrete rules the general principles embodied in the national constitution. Some recent judgments by the Italian Court of Cassation and Constitutional Court concerning topical issues of family law, with particular regard to surrogate motherhood, full adoption by same-sex couples, and repudiation, are particularly telling of this state of affairs. As the author proposes, the dichotomy between the said two notions of public policy for the purposes of private international law is likely to be overcome by suggesting a more flexible reading of the traditional notion, likely to encompass within its scope also those internationally shared legal principles concerning fundamental rights, embodied in the different notion mentioned above, with particular regard to the protection of the best interest of the child, as well as of gender equality.