• adoption
• adozione
• best interests of the child
• clausola generale
• diritto di familglia
• family law
• medically assisted procreation
• principio generale
• prograzione medicalmente assistita
• status filiationis
• superiore interesse del minore
• surrogacy

Contemporary family law has been extensively influenced by the widespread implementation of the best interests of the child (BIC) principle in both legal and jurisprudential spheres. The BIC principle is acknowledged as a general principle across international, European, and national systems. However, despite its extensive acceptance, the principle's status remains a subject of intense debate. The intrinsic vagueness of the BIC principle, while making it adaptable to a variety of circumstances, also creates opportunities for contestable interpretations and applications. Furthermore, the flexibility of the concept often results in conflicting applications, both within the same system and among different national systems, creating antinomies rather than harmonies. As a result, this legal standard has “come to mean something less than what is in the child’s best interests.”1 This research stems from the urge to restore coherence to the cornerstone of family law, that is, the BIC, accepting the challenge of reconciling the open-ended nature of the concept with the absolute imperative to avoid inconsistent interpretations. In pursuit of this ultimate goal, this thesis is constructed as a synthesis of two different lines of research, namely the BIC as a theoretical concept and the BIC in action. By doing so, it aims to offer a comprehensive and holistic understanding of BIC and its application in family law. The first line focuses on the analysis of the legal concept of the BIC. Courts and scholars seem to regard the BIC as a polymorphous instrument capable of guiding the interpreter in all actions concerning children. On closer inspection, however, we have the impression of gazing at an abstract and indefinite object, the protean nature of which makes it impossible to focus on its contours. Hence the conviction that the contemporary debate on the BIC needs to be subjected to a critical examination, one that is not dominated by its own pars destruens, but is capable of evolving into a pars construens which would bring order to the multiplicity of references and trace the thin line that separates use from abuse. Such an inquiry, given the vastness of all the contexts and areas of law in which the BIC is used, is undoubtedly too broad for the limits of a three-year doctoral research project. For this reason, the theoretical focus of this work is on the concept of BIC in private law adjudication. Here, the research investigates the BIC as both a principle and a general clause, seen through the lens of general theory and critical legal studies. This purely theoretical line of work, however, is only the soil where this work takes its roots to develop the second line of investigation, where it comes to life. Although the BIC is applied in many disciplinary fields and in different ways, it plays a particularly prominent role in family law. Here, the primacy of the interests of the child, born as a rule of application to the concrete case and a factor in the disruption of a system of consolidated principles of family law, has become the foundation of the rules governing family relations, from their constitution to their dissolution, from their physiology to their crisis. In fact, the BIC was - and still is - at the heart of the family law reforms that have swept the Western world in several waves since the 1970s. Despite this common line of development in most countries of the Old and New Worlds, substantive family law systems differ widely, and national judges are faced with the need to reconcile these differences, which enter national jurisdictions through the filter of private international law. This is particularly true when it comes to the rules governing the determination of parentage. In the absence of specific international instruments, however, the BIC principle is often the key - and sometimes even the only - tool in the hands of the Courts to reconcile the discrepancies between different legal systems. Hence there is need to develop criteria for the application of the principle in the context of national - and a fortiori cross-border - parentage disputes. Subsequently, therefore, the need for theoretical studies to be translated into action, through the creation of guidelines for a rational and reasonable application of the BIC principle. Thus, the two perspectives that guide this research lead to the creation of a model for the application of the BIC in the context of private law adjudication, based on theoretical studies on the concept of the BIC as a general clause and tested in the context of family law disputes concerning parentage. In particular, the context of the research coincides with the domain of family law disputes concerning the establishment and recognition of legal parentage through adoption and ART/surrogacy. These two areas have been chosen to test the use of the BIC because of three common features that make them of great interest. First, controversies about the establishment or recognition of legal parentage impact directly on children’s status filiationis and, as such on their fundamental rights. The concept of parentage is closely linked to the fundamental right to family life and the child's right to a private life, along with the rights of the parent(s), making it challenging to determine where each begins and ends. Here, contestable uses of the principle can benefit the adults’ interests, rather than the child’s. Second, in judicial disputes about Adoption and ART, conflict may arise between the interests of the child and those of children as a group. Laws about Adoption and ART, in fact, regulate the establishment of parentage through rules made to protect not only the rights of the single child but also, primarily, the rights and interests of children. Third, the high number of cross-
border cases concerning the recognition of parentage requires the BIC concept to be balanced with an equally vague concept: public order. Therefore, studying these decisions offers the twofold opportunity to highlight, on the one hand, the role that the BIC plays in constraining or expanding the legal force of foreign court decisions, and, on the other, the role that it plays in consolidating the Court's activity as a judicial source of integration of national and international private law.