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In Italy there is still no law regulating and protecting the parenting of a LGBT+ couple, in other words, a law that determines the modalities for the recognition of their children.
The serious and unacceptable regulatory vacuum caused by a Legislature unwilling to take a stand has engendered over the past two decades the proliferation of jurisprudential pronouncements that are schizophrenic to say the least.
In this article:
When we mention LGBT+ parenting, we refer to that bond existing between the members of a LGBT+ couple (whether or not civilly united) and their children (born through the use of medically assisted procreation techniques), or born from previous relationships.
In legal terms, a child born within a LGBT+ couple has only one parent: the so-called “biological parent”. The “intentional” or “elective” parent, i.e. the partner of the biological parent, has no rights and no duties towards that child… as far as Italian law is concerned, they simply do not exist.
As mentioned earlier, in Italy, as of today, there is no law regulating LGBT+ parenting. All the same, a number of other legislations – on related and equally relevant issues – are worth mentioning.
We refer in particular to:
The first landmark ruling on the issue of LGBT+ parenting is credited to former President of the Juvenile Court of Rome Melita Cavallo in 2015.
That ruling was dedicated by President Cavallo “to all those children born in same-sex couples who until then had been denied the right to have two parents”.
The case involved two women bound by a romantic and cohabiting relationship that had lasted since 2003 who had traveled to Spain in order to access heterologous MAP and fulfill their desire for motherhood. The child, who was born in Italy, had been living with her biological mother and her partner since birth.
The intentional mother had then filed before the Juvenile Court of Rome, an application to adopt the child ( pursuant to Law 184/1984, Art. 44, paragraph 1, lett. d), pointing out that the child’s birth had been the result of a parental project matured and realized with her life partner.
In order to stem the existing regulatory vacuum on the matter, Judge Cavallo provided the possibility for the intending parent to adopt under Art. 44 lett. L. 184/1983 (so-called adoption in special cases) the child of the partner born in Italy through the use of medically assisted procreation practices carried out abroad.
The Supreme Court of Cassation in Judgment No. 12962 of June 22, 2016 confirmed the orientation of the judges of merit.
The fundamental limitations presented by adoption in special cases are basically three:
On this last aspect, it is necessary to point out that the Constitutional Court in its Sentence No. 79 of March 28, 2022 declared the constitutional illegitimacy of Article 55 of the Adoption Law (Law 184/1983) in the part where through reference to Article 300, Paragraph II, of the Italian Civil Code, it stipulates that adoption in special cases does not establish any civil relationship between the adoptee and the adopting parent’s relatives.
The case concerns two men, Italian citizens, married abroad with a marriage transcribed in the civil unions register in Italy, who after having a child born abroad with recourse to the so-called surrogacy had been refused by the civil registrar of the Municipality of Verona the transcription of the child’s foreign birth certificate, in which it was attested that the child was the child of both of them, on the basis of a ruling of the Supreme Court of British Columbia.
The Court of Appeals of Venice in Sent. 6775/2018, in light of the preeminent interest of the child, recognized in Italy the legal effectiveness of the Canadian ruling, ordering, as a result, the integration of the child’s birth certificate by indicating both legal parents, since there was no conflict with Italian international public policy.
During the time in which the couple was requesting the transcription of the act, the Supreme Court in United Sections intervened in 2019 for another case with its ruling 12193/2019. The United Sections had had occasion to reiterate that in the Italian legal system – the ban on the use of so-called surrogacy being in force – the act of a foreign country relating to the birth of a child born through the use of this procreation technique could not be transposed. As a matter of fact, the prohibition set forth in Law 40/2004 constitutes an unbreakable principle of public policy.
Later on, in 2020, The Supreme Court of Cassation raised a question of the constitutionality of the legislation that excludes, through the limit of public order, the possibility of the recognition in Italy of the orders of foreign jurisdictional authorities that ascertain the right of the intended parent to be included in the birth certificate of the child born abroad with recourse to so-called surrogacy.
In Judgments 32 and 33 of March 9, 2021, the Constitutional Court rejected the questions of constitutional legitimacy, at the same time urging immediate intervention by the Legislature on the matter, and emphasizing in both rulings how the current discipline of adoption in special cases is insufficient for the purposes of full protection of children born in LGBT+ couples as a result of the use of MAP techniques not permitted by our system.
Most recently, the United Sections in Judgment No. 9006 of March 31, 2021 affirmed the principle that it is not contrary to the principles of international public policy to recognize the effects of a foreign judgment of full adoption of a child by a male homosexual couple, provided that the child was not born as a result of a maternal surrogate agreement (in the case at hand, the child’s biological parents had given their consent to adoption).
In response to the continuing failure of the Legislature to act and to an increasingly chaotic jurisprudence, the City of Milan, in the person of its Mayor, has independently decided to reactivate the recognition of children born in Italy to LGBT+ families.
With regard to children born to two mothers who have resorted to heterologous MAP in a foreign country where this practice is permitted and who have given birth in Italy, the Municipality will register the birth certificate of the mother who gave birth. Both women must then make a joint declaration in which the mother who gave birth recognizes the other as the mother of intention who, in turn, giving her consent is added on the birth certificate of the child.
The right to civil registration is also recognized for children of two mothers who have given birth abroad.
As of November 2021, children born to two fathers through the use of so-called surrogacy are also recognized. The municipality – in these cases – pays much attention to the country where such a practice took place. No problem arises with reference to the U.S. and Canada, countries in which there is specific legislation on the subject, which protects the rights and health of women.
