In Italy, the topic of same-sex parental adoption still lacks a uniform and fully recognised regulation. Italian law does not expressly provide for the possibility for a same-sex couple to adopt a child jointly. However, there are cases in which it has been possible to obtain legal recognition, albeit through indirect and complex paths.
In recent years, the courts have opened up some possibilities thanks to evolutionary interpretations of the law, in particular in cases of stepchild adoption. This is the possibility for one partner to adopt the biological or adoptive child of the other partner. This route, however, is not guaranteed by law: it is a practice accepted in some courts, but not uniform or certain throughout the national territory.
For homo-affective families who raise children, daily reality can be perfectly stable and affectionate, but on the legal level fragilities remain, especially in delicate situations such as separation, illness or succession. Same-sex parenthood, although increasingly recognised socially, continues to clash with a regulatory framework that has not yet adapted to the changes in society.
The limits of Italian legislation on same-sex parental adoption
Currently, a law on gay adoption in Italy is absent. Our legal system provides for adoption exclusively for married (heterosexual) couples or for single persons, but does not explicitly mention same-sex couples. This regulatory silence has created a legal gap that is partly filled by case law, but which does not guarantee stability or certainty.
In the context of homo-affective families, this uncertainty translates into the absence of automatic protections for the partner’s child. In other words, if the biological parent passes away, the partner of the other parent, even if always present in the life of the minor, risks having no legal recognition.
The protection of children in same-sex couples thus becomes a central issue. It is not just about affection or educational roles, but about concrete rights: the possibility of being with a child in hospital, of taking healthcare decisions, of representing them legally, of guaranteeing them economic and emotional stability.
Even rulings on the recognition of adoptions obtained abroad by same-sex couples are subject to assessment on a case-by-case basis. Italian courts do not always validate these acts, and the absence of a national rule that regulates same-sex parental adoption in Italy leaves room for profound territorial inequalities.
Which legal tools are practicable today
Despite the absence of a clear law, there are paths that some homo-affective families can assess with the assistance of a lawyer. Stepchild adoption remains the most practicable in the case of couples civilly united or cohabiting for a long time, when the interest of the minor is clear. The court can authorise adoption within the limits of art. 44 della Legge 184/1983, even in the presence of non-ordinary conditions.
Another useful tool is the drafting of legal documents that strengthen the partner’s role: wills, powers of attorney, advance healthcare directives and cohabitation agreements can offer a first level of protection. Although they do not replace adoption, they can ensure partial protection of the rights of same-sex parental families.
Finally, dialogue between the legal profession and the judiciary is increasingly relevant in building favourable practices, also pending a legislative reform that fully recognises same-sex parenthood.
For many families, these paths are not just technical, but deeply personal. Sometimes it is precisely from a simple question, “can I really protect my child, even though I did not give birth to them?”, that the need to find one’s way among rules, judges and documents arises. In such cases, relying on those who know the workings of the legal system thoroughly and who have experience in the field of protection of homo-affective families can make the difference. And if guidance is needed that knows how to listen before advising, there are professionals who work every day on these topics, with discretion and competence.
