Ricerc@Sapienza

The essay comments on the decision of the United Sections of the Italian Cassation Court on the matter of surrogacy, trying to identify the strengths and weaknesses of this decision and offering a more general interpretation of this phenomenon in the Italian legal system. It is the occasion for a reflection both on the concept of interactional public order and on the surrogacy. The essay contests the idea that the best interest of the minor can be - as the Cassation says - a counter-limit of the international public order, since the last and the first must interpenetrate and not juxtapose. The idea of the Italian Cassation Court according to which the surrogacy is always contrary to the international public order is disputed and it is not possible a balance with the best interest of the minor, which would have been made by the legislator. The idea that surrogacy is always and a priori contrary to international public order is also disputed, more generally, since it is a very complex phenomenon that requires a very careful evaluation of individual interests, especially when it comes to of a gestation for replacement inspired by free solidarity.