La Corte d’Appello di Bologna ha confermato la decisione del Tribunale di Piacenza con cui, il 15 ottobre scorso, era stato considerato legittimo il rifiuto dell’ufficiale dello Stato civile del Comune emiliano di registare il riconoscimento dei bambini, nati con tecnica di fecondazione assistita, dalle rispettive madri non biologiche.
Di fronte alla Corte d’Appello sono stati discussi due ricorsi, riferiti a due coppie di donne, una unita civilmente, l’altra no, in cui una delle componenti la coppia aveva fatto ricorso a tecniche di procreazione medicalmente assistita all’estero, tramite un donatore maschile anonimo.
Secondo le ricorrenti in appello, l’assenso manifestato dalla compagna della partoriente, al momento della procreazione medicalmente assistita con seme maschile, doveva essere considerato assenso alla genitorialità, al fine di consentire al nascituro il diritto a vedere registrate sull’atto di nascita le due compagne quali genitori. Inoltre le ricorrenti contestavano il diritto del sindaco a stare in giudizio e a difendere le ragioni dell’Ufficio di Stato civile del proprio Comune.
«Con i decreti n. 1375/2020 e n. 1376/2020 – si legge nel comunicato ufficiale del Comune di Piacenza – la Corte d’Appello di Bologna ha preliminarmente affermato la piena legittimità del sindaco a partecipare al giudizio, a difendere le posizione dell’Ufficio di Stato civile e ad essere rappresentato dal dirigente dell’Avvocatura comunale, giusta procura generale alle liti. Mentre, in punto di diritto ha affermato che, sia sul piano normativo che su quello giurisprudenziale, non c’è alcun fondamento per riconoscere la genitorialità in capo alla madre d’intenzione, all’esito di un percorso di procreazione medicalmente assistita.
La Corte ha escluso altresì l’applicabilità degli istituti del codice civile sul riconoscimento dei figli nati fuori dal matrimonio, essendo riferiti a coppie eterosessuali. Anche per la coppia unita civilmente, la Corte d’Appello ha escluso l’applicabilità del codice civile, posto che la legge Cirinnà, che ha istituito le unioni civili, ha escluso ad esse l’applicabilità della disciplina sul riconoscimento dei figli.
La Corte ha richiamato a sostegno delle proprie posizioni la recente sentenza n. 221/2019 della Corte Costituzionale, che dichiarato la legittimità della normativa in tema di procreazione medicalmente assistita là ove esclude che ad essa possano far ricorso coppie dello stesso sesso, e la giurisprudenza di merito che pone sempre come presupposto per l’operatività della normativa sul riconoscimenti dei figli naturali, un legame biologico, ovviamente, nel caso in esame, totalmente assente.
Infine la Corte d’Appello ha poi correttamente evidenziato come i figli nati da pma (procreazione medicalmente assistita) non risultano affatto sforniti di tutela, attesa la possibilità di ricorrere ad altri strumenti giuridici come l’adozione in “casi speciali” prevista dall’art. 44.1 lett d) della l. 184/1983 (c.d. “stepchild adoption”) che consente di creare un relazione giuridica fra l’adottando e il genitore intenzionale».
La coppia unita civilmente, formata da Sara e Irene e seguita dall’avvocato Alexander Schuster, aveva fatto parlare di sé per aver sollevato l’attenzione sulla pretesa da parte del Comune di registrare la piccola, venuta alla luce a Piacenza il 24 luglio 2018, quale figlia di padre anonimo. Pretesa basata sul diniego di formare un atto di nascita attestante che la bambina era nata da fecondazione assistita, effettuata in Spagna col consenso di entrambe le donne.
Sara, la madre biologica, aveva allora deciso di cedere e dichiarare il falso per non lasciare la piccola in una sorta di limbo identitario, salvo poi ad autodenunciarsi, il 21 agosto 2018, per falso in atto pubblico.
Nonostante una tale iniziativa, subito definita da Schuster quale «tentativo di denunciare dall’interno il sistema, le sue contraddizioni e le assurdità», il Tribunale di Piacenza aveva invece riconosciuto legittimo il rifiuto dell’ufficiale di Stato civile a ricevere il riconoscimento di entrambe le donne, tanto nel caso di Sara e Irene, quanto in quello dell’altra coppia.
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