The publication of a judgment clearly destined to mark the evolution of Italian family law is already attracting much interest. With sentenza n. 68 del 22 maggio 2025, the Corte Costituzionale declared the constitutional illegitimacy of the prohibition for the so-called “intentional mother” from recognising as her own the child born in Italy from medically assisted procreation legitimately performed abroad.
The judgment, it must be specified clearly, concerns the child born in Italy to a woman who has resorted abroad, in compliance with the rules in force there, to medically assisted procreation techniques.
Indeed, articolo 8 della legge n. 40 del 2004 has been declared constitutionally illegitimate, in the part in which it does not recognise to the child born in Italy to a woman who has resorted abroad to medically assisted procreation techniques the right to be the child also of the woman who expressed prior consent to the techniques and assumed parental responsibility.
A historic ruling for non-traditional families
The Court holds that the current prohibition constitutes a violation of three fundamental constitutional principles. First and foremost, Article 2 of the Constitution, inasmuch as it impairs the personal identity of the child and their right to be vested, from the moment of birth, with a certain and stable legal status. Biparenthood, in the specific circumstances at hand, takes on the character of a responsibility arising from the joint undertaking assumed by a couple upon deciding to avail themselves of medically assisted reproduction for the purpose of bringing a child into being — an undertaking from which, once assumed, neither parent may resile, and in particular the so-called intentional mother.
A further violation is established with respect to Article 3, on account of the unreasonableness of a discriminatory legal framework that lacks justification in the absence of a competing interest of equivalent constitutional rank. Finally, the Court found Article 30 to be compromised, in that the minor’s rights are infringed — specifically the right to have recognised, from birth and as against both parents, all rights attendant upon parental responsibility.
Of central importance is accordingly the best interests of the child, who must have the full body of their rights recognised as against both parents — not solely the biological mother but equally the intentional mother. The Constitutional Court emphasised that the failure to recognise, from birth, the child’s legal status as offspring of both parents gives rise to consequences of the utmost gravity for the minor.
The right to personal identity is infringed, and the effective enjoyment of the fundamental right to be maintained, educated, instructed and morally supported by one’s parents is prejudiced — in accordance with the child’s capacities, natural inclinations and aspirations. Furthermore, the right to maintain a balanced and continuous relationship with each parent is compromised, as is the right to receive care, education, instruction and moral support from both parents, and to preserve meaningful relationships with the ascendants and relatives of each parental line.
The limits of the judgment and the question of single women
It is important to underline that the Corte has maintained a more cautious position on other aspects of assisted procreation. The Consulta has indeed considered “not unreasonable nor disproportionate not to allow single women access to medically assisted procreation”, thus confirming the current regulatory limits for single women.
The reason given is that it falls within the interest of the future children that the legislator considered “not to endorse a parental project that leads to the conception of a child in a context that, at least a priori, excludes the figure of the father”.
However, the Corte has clearly reaffirmed that “there are no constitutional obstacles to a possible extension, by the legislator, of access to medically assisted procreation also to family units other than those currently indicated”, thus leaving open the possibility of future regulatory amendments also for single-parent families.
Towards a new constitutionally oriented family model
The decision of the Corte Costituzionale fits within a context of persistent and culpable legislative inertia. In the absence of an organic reform by Parliament, the judges, prompted by the concrete and dramatic instances of families, have built piece by piece an effective protection for children born from projects of shared parenthood. It is a phenomenon that has been repeating itself for years in our legal system, where constitutional case law is forced to fill regulatory gaps that the legislator stubbornly refuses to address.
The judgment therefore represents a further and decisive piece in the case-law construction of a more inclusive and modern family law, which recognises the plurality of contemporary parental experiences and effectively guarantees the best interest of the minor, as the Costituzione requires.
This constitutional ruling forcefully reinforces the idea that emotional bonds, shared responsibility and intentionality in building a family must find full recognition and legal protection, even outside the traditional model still prevailing in Italian rules. The Corte has once again shown that it knows how to read the changes in society and to orient the law towards solutions that prioritise the substance of family relationships rather than their form.
The judgment thus marks a decisive and probably irreversible step towards a family law that knows how to reflect the complexity and richness of contemporary family relationships. The ultimate aim remains always the protection of the fundamental rights of minors and their right to a stable and certain legal identity from birth, regardless of the manner in which that family was formed. The path traced by the Consulta is clear: it is time that the legislator too take note of these changes and finally provide an organic reform that gives legal certainty to all Italian families, in all their forms.
We at Studio Legale Internazionale Boschetti, in this scenario, stand on the side of single women and homosexual couples who seek to obtain the recognition of the child, including for the intentional parent, in cases of assisted procreation lawfully performed abroad.
