Anonymous Birth. Legal and Psychosocial Profiles after the Declaration of Unconstitutionality, La Valle del Tempo Editions. Naples, March 19, 2025, Raffaello bookshop in via Kerbaker
Review by Pasquale Giustiniani
The rights of the mother and the newborn: for a balance. The new and integrated edition of a previous volume (published in 2015) today proposes the issue of anonymous birth compared with the right to know one's biological origins also for the purpose of avoiding incest: in fact, despite the ruling of the Constitutional Court of 2013, which will be discussed shortly, there are no legislative updates that have modified article 28 of law 184 of 1983 regarding the possibility for adopted children to know their origins. The unrecognized newborn must be provided with specific interventions, according to precise regulatory obligations, to guarantee him/her the due protection, in the implementation of his/her fundamental rights. The birth declaration made within the maximum terms of 10 days from birth, allows the formation of the birth certificate, and therefore the anagraphic identity, the acquisition of the name and citizenship. If the mother wishes to remain anonymous, the birth declaration is made by the doctor or midwife: The birth declaration is made by one of the parents, by a special proxy, or by the doctor or midwife or by another person who attended the birth, respecting the mother's possible wish not to be named (Presidential Decree 396 of 2000, article 30, paragraph 1).
Article 28 of Law 2001 number 149, adhering to an obligation arising from the United Nations Convention on the Rights of the Child of nineteen eighty-nine (article 7) and the Hague Convention on International Adoption of 1993 (article 30), has also introduced in Italy, after much controversy, the right of the adopted child to access, under certain conditions and with certain procedures, information concerning the identity of his or her biological parents. However, access to that information is not permitted if the adopted child was not recognized at birth by the natural mother. (Law 2001 number 149, article 24 paragraph 7 - "Access to information is not permitted if the adopted child was not recognized at birth by the natural mother and if even just one of the biological parents has declared that they do not wish to be named, or has given their consent to the adoption on condition of remaining anonymous").
Therefore, the right to remain a secret mother prevails over any other consideration or request and this must constitute an additional element of security for those who decide, aided by a competent and attentive service, to give birth anonymously. Bioethical aspects of the issue. A ruling by the Italian Constitutional Court - number 278 of 2013 ended up breaking an ancient legal dogma in force: the "secrecy of the identity of biological parents as an insurmountable guarantee of the cohesion of the adoptive family, in the awareness of the need for a dialectical evaluation of the relative relationships", even if not through the affirmation of the reversibility of the secret, but with the recognition of the right of the subject not recognized at birth to ask for access to information. Furthermore, by ruling the unconstitutionality of article 4, paragraph 3, of law 19 February 2004, number 40 (Rules on medically assisted procreation), the Constitutional Court established the principle according to which, if the child asks to access information about his or her origins, the mother, while retaining the right to anonymity, can revoke it. This allows both the reconstruction of one's life and the avoidance of the removal of an important part of it and the protection of opposing rights, equally deserving of respect, such as the protection of mothers who give birth to children who are "orphaned" from birth, definitively erasing that moment and the right of many adoptive children who seek to know their origins and roots. Furthermore, ruling 162 of 2014 of the Constitutional Court considered, among other things, that: «The question of the right to genetic identity, despite the peculiarities that characterize it in relation to the case in question, is not even new. In fact, it was placed in reference to the institution of adoption and the legislator has recently intervened on it, regulating the an and quomodo of the right of adoptive parents to access information concerning the identity of the biological parents of the adopted child article 28, paragraph 4, of law 4 May 1983, number 184, containing "The right of the minor to a family", in the text amended by article 100, paragraph 1, letter p, of legislative decree 154 d in 2013.
Furthermore, in this context the dogma of the secrecy of the identity of the biological parents as an insurmountable guarantee of the cohesion of the adoptive family had already been broken, in the awareness of the need for a dialectical evaluation of the relative relationships (article 28, paragraph 5, law number 184 of nineteen eighty-three). This requirement was confirmed by this Court which, in examining the rule that prohibited access to information for the mother who declared at birth that she did not wish to be named, stated that the irreversibility of the secrecy caused an irreparable wound to Articles 2 and 3 of the Constitution and therefore removed it, deeming its maintenance inadmissible and inviting the legislator to introduce specific provisions aimed at allowing the verification of the continuing relevance of the choice made by the natural mother and, at the same time, to strictly safeguard her right to anonymity (judgment number 278 of 2013) The prohibition in question ultimately causes an injury to the fundamental freedom of the couple subject to law number 40 of 2004 to form a family with children, without its absolute nature being justified by the needs of protection of the child, which, by virtue of what was noted above in relation to some of the most important aspects of the legal situation of the same, already deducible from the current regulations, must be considered adequately guaranteed.
The regulation of the effects of heterologous PMA practiced outside our country, although it is correctly inspired by the aim of offering due protection to the newborn, finally highlights a further element of irrationality of the censored discipline. This creates, in fact, an unjustified, different treatment of couples affected by the most serious pathology, based on their economic capacity, which intolerably rises to a requirement for the exercise of a fundamental right, denied only to those without the necessary financial resources to be able to resort to this technique by going to other countries". And here are the bioethical aspects in the question relating to anonymous birth: first of all, the revisiting of the process called generation and birth of new lives. As already supported by authoritative exponents of the Church - and in particular by Monsignor Cesare Nosiglia, Archbishop of Turin -, it seems that in Italy bioethical issues are now managed in the courts rather than in the appropriate legislative bodies. Above all, the desires of some seem to prevail over democracy and the involvement of public opinion. Now, after the ruling of the Constitutional Court that declared the ban on heterologous insemination illegitimate, it is necessary that as soon as possible certain norms are voted in Parliament that regulate the issue throughout the national territory to avoid the Wild West, eugenic excesses and the establishment of a sneaky procreative market animated by the materialistic logic of "the child at all costs". I also believe, like Monsignor Nosiglia, that "the generation of a person cannot be confused with the production of an object made to the size of one's needs and one's insatiable thirst for parenthood": the child is not something owed and cannot be considered as an object of property: rather, it is a gift, "the greatest" and "the most free"; it is a living testimony of the reciprocal donation of its parents. There is no "right to a child", as some would have us believe. No interpretation of any legal provision in force in Italy could legitimize it. Secondly, the method of collecting and storing the newborn's health data. Thirdly, the legitimate search for one's roots, especially to protect the right to health, in the case of genetic or hereditary pathologies, such as lymphoma, which Anna Arecchia talks about in her book. It is not just a psychological question to want to search for one's biological and genetic origins. Of course, the emotional charge is very strong, like that of Francesca Darima who, after having even gone to Chi l'ha visto?, has consigned to a book (A prince, a nun, an incest. True story, Fabio croce editore, Rome 2007) a good fifty years spent in search of evidence, until she learned that she was generated by incest and, perhaps for this reason, abandoned by her mother who, presumably, felt the rejection towards a creature had through violence. Now it is also a question of medical prevention, as is increasingly emerging, for example, from the practice of assisted procreation through heterologous insemination outside Italy, with examples even of surrogate motherhood. In fact, heterologous insemination does not allow total control over the genetic heritage of the "external parents" to the stable couple who requests access to the techniques and, therefore, subjects the potential unborn child to the possibility of not knowing his or her origins, both for health purposes and to avoid falling in love in the future with someone who is of the same genetic heritage as him or her. These are not remote hypotheses, if we take into account that cases of this type are already dealt with by Juvenile Courts. Furthermore, knowing one's origins is also essential when one incurs certain pathologies; even a member of parliament of our Republic found herself...