Filiation for same-sex couples in Italy

The regulation of the rights of homosexual couples in Italy underwent a significant turning point with the introduction of Legge n. 76/2016, known as “Legge Cirinnà”. This legislation established the institution of civil unions between persons of the same sex, constituting the first legal recognition of homosexual couples in the Italian legal system. During the parliamentary process, the original text of the law included the possibility of adoption of the partner’s child (so-called stepchild adoption), but this provision was subsequently removed due to strong political and social oppositions.

The restrictions of the Italian legal system on filiation for homosexual couples have pushed the latter to seek the satisfaction of their parental expectations in countries where the rules are more favourable, such as France or Spain.

However, the transcription of a birth certificate formed abroad can be partial, recognising only the biological parent, if the Municipality — and possibly the Tribunal — addressed implements what was established by the Corte di Cassazione in judgment n. 38162/2022. This approach, while ensuring a legal bond between the minor and at least one of the parents, does not recognise the parent of intention: this makes the support of a law firm for international family law essential, like Boschetti Studio Legale, whose commitment is to ensure qualified legal assistance to ensure that Italian Municipalities recognise bi-parenthood in the case of children of gay couples, and the consequent right of the minor to be considered part of a family on a par with what occurs for children of heterosexual parents, as well as to enjoy the related prerogatives connected to the status of child.

The reference legislation in Italy on filiation matters is contained in the Codice Civile, in the articles relating to parenthood, and in legge 184/1983 on adoption. According to articolo 269 c.c., mother is only the woman who gives birth to the child. This definition, while applicable to most cases, excludes the recognition of an “intentional mother” in the case of female same-sex parental couples.

As for male gay couples, the natural impossibility of conceiving children entails the inevitable recourse to gestation for others (GPA) or otherwise called “surrogate motherhood”, which currently, however, has even become an international offence, in the sense that an Italian citizen who carries out the practice abroad also commits it. Even in the absence of jurisprudential precedents, since it is a very recent change of 2024, it is virtually obvious that there will be no more space for the transcription of the birth certificate with both parents where surrogate motherhood has been resorted to.

The matter of the parenthood of gay couples, as already mentioned, has received much attention in case law in recent years. While it is true that the Sezioni Unite della Corte di Cassazione (judgment n. 12193/2019) established that it is not possible to automatically recognise in Italy a birth certificate formed abroad indicating two fathers or two mothers, considering such recognition contrary to international public policy, subsequently, however, judgment n. 33/2021 was registered with which the Corte Costituzionale affirmed that in these cases the superior interest of the minor must be taken into consideration. The Consulta, while noting however that such interest cannot automatically prevail over the prohibition of surrogate motherhood, invited the legislator to intervene to fill the regulatory gaps. It is certainly an important ruling for gay couples, also at “political” level, having recognised that the current legal system does not offer sufficient protection to minors born from techniques not permitted in Italy.

It must however be specified that, in relation to surrogate motherhood, such rulings concern a period in which surrogate motherhood was indeed sanctioned at internal criminal level, but did not encounter obstacles at international level, in the sense that gay couples were free to practise it in other States where it is permitted, with all the issues inherent in the recognition of status in Italy, but without falling into any criminal hypothesis. Currently, the situation is very different: on 4 November 2024 articolo 12 della legge 40/2004 was officially modified with the new legge n. 169/2024, the text of which appeared in the Gazzetta Ufficiale on 18 November 2024. The modification concerns the possibility of criminally prosecuting Italian citizens who go abroad to access gestation for others.

Another important regulatory reference is represented by the Convenzione Europea sui Diritti dell’Uomo (CEDU) and by the case law of the Corte di Strasburgo. In particular, the judgments Mennesson and Labassee against France (2014) established that the refusal to recognise filiation ties formed abroad can violate the right to private life of the minor, guaranteed by art. 8 della CEDU. Although these rulings do not have direct binding force in Italy, they influence the interpretation of national rules, especially in relation to the protection of fundamental rights, and may represent references for future regulatory changes on filiation for same-sex couples.

Therefore, as has been seen, the Italian system for filiation of the homosexual couple highlights gaps in protection, and the interpreter must implement a balance between respect for the principles of public policy and the protection of the rights of the minor. Indeed, at stake is not only the interest of the homosexual couple in bi-parenthood, but also that of the minor in being part of a complete family, where the caregivers are considered by law as both parents and where the minor themselves can enjoy the broadest rights, without any discrimination.

Boschetti Studio Legale is committed to offering targeted legal solutions, leveraging its competence in international law, as well as the empathy and professionalism of its team of lawyers, to ensure that every family composed of homosexual couples can face their challenges in the matter of filiation with confidence and serenity. With experience in international and family law, we assist same-sex parental couples and foreigners residing in Italy in these complex matters. The Studio offers support in the preparation of requests for transcription of birth certificates and in the management of adoption proceedings in particular cases, an option provided by art. 44 della legge 184/1983 to protect the affective ties between the minor and the parent of intention.

The filiation of the homosexual couple in Italy is a topic that intertwines closely with the question of parental responsibility, regulated by a set of national rules and international principles. In the absence of rules that govern in an organic and clear way the filiation of same-sex parental couples, the recognition of parenthood is a very delicate and complex aspect, that sometimes — where there are refusals from civil status officers — needs to be entrusted to a lawyer for international family law. Boschetti Studio Legale, by recalling case law and national and international legislation, can protect the rights of homosexual couples, outlining precise strategies and presenting them clearly to the client from the first contact.

Parental responsibility, according to the Italian Codice Civile, is the set of duties and rights that belong to parents for the care, education and development of the child. However, as already observed, for homosexual couples the Italian system recognises such rights only to the biological parent or to the adoptive parent. This creates an evident imbalance, that affects the family life of the minor and of the couple, translating into a disparity of rights that our society, in a good part of it, interprets as a discrimination.

Recent case law has tried to intervene to reduce such imbalances. With judgment n. 32/2021, the Corte Costituzionale, in declaring inadmissible a question of constitutional legitimacy on art. 250 c.c., which prevents the direct recognition of social parenthood for same-sex couples, underlined that the current regulation does not ensure adequate protection for the rights of the minor, urging legislative intervention to reform the system.

In the case of minors born abroad, the parental responsibility of the parent of intention can be recognised and constituted through the institution of family law of adoption in particular cases, provided by art. 44 della legge 184/1983. This procedure, although useful, does not offer full equal treatment compared to traditional families, differing notably from full adoption, and, therefore, creating a significant disparity of treatment for homosexual couples. Suffice it to think that adoption in particular cases provided for same-sex couples:

• Does not create kinship ties with the family of the adopter
• Maintains legal relationships with the family of origin
• Limits succession rights to the adopter only
• Does not allow transmission of the adopter’s surname

This disparity of treatment was the object of criticism by the Corte Costituzionale, which, with judgment n. 33/2021, defined adoption in particular cases as “a form of protection of the interests of the minor that is significant, but not yet entirely adequate to the measure of constitutional and supranational principles”. The discrimination manifests itself particularly in the succession sphere, where children adopted through this procedure do not enjoy the same inheritance rights towards the relatives of the adopter, creating a category of children with reduced protections compared to adoptive children with full adoption.

In a historic moment where the parenthood of homosexual couples is particularly felt, and where the field opens to legislative changes of greater openness, Boschetti Studio Legale is committed to assisting homosexual families in the path of recognition of parental responsibility, both through adoption in particular cases and through recourse to international law tools. Thanks to the knowledge of European regulations and international conventions, the firm helps to ensure that the rights, both of the gay couple and of the minor children, are respected and that the life of the family unit can develop without discrimination.

Clear is how the matter is of absolute importance. Suffice it to think of the evident practical difficulties encountered, for example, by a child who, awaiting the recognition of the bond with the parent of intention, cannot be picked up from school without a delegation or risks remaining without economic support in case of separation of the parents. In situations of medical emergency, the lack of recognition of the parent of intention can even put at risk timely decisions for the health of the minor.

The current legislative uncertainty must not discourage those who seek protection. It is essential to act promptly to defend positions of fundamental importance such as the right of couples to parenthood and the superior interest of the minor.

The transcription of foreign acts in Italy regarding filiation for same-sex couples is a crucial topic for the protection of the rights of minors and families. Taking stock of the most recent cases, the judgment with which the Corte d’Appello di Milano established that only the biological mother can be recognised as such can be recalled, accepting the appeal of the Procura against the decrees of the Civil Court that had validated the transcriptions of birth certificates of children of three couples of women, born from assisted procreation carried out abroad. This decision annulled the recognition of “double maternity”, ordering the rectification of the birth certificates.

The Appeal Court rejected the interpretation of the Civil Court underlining that in the Italian legal system the formation of birth certificates indicating two parents of the same sex is not admitted. Citing the case law of the Cassazione and of the Corte Costituzionale, the judges established that such transcriptions find no legal foundation and must be rectified. They also reiterated that it is up to the legislator to intervene to organically regulate the rights of same-sex parental couples and, in particular, those of the minors involved. Parliament will have to balance opposing constitutional rights, including those of the unborn child, and consider situations such as the separation of homosexual couples, establishing whether the parental choice should be irrevocable. Currently, therefore, the only viable route for parents of intention would be that of adoption in particular cases, strengthened by the already cited judgment of the Corte Costituzionale.

Moving instead to a positive case, mention can be made of that of the child born in the United States through surrogate motherhood, child of an Italian and an American, at the centre of a ruling of the Milano Civil Court. The judges ordered the Municipality to integrally transcribe the birth certificate, recognising both parents. The decision is based on judgment n. 33/2021 della Corte Costituzionale, which had refuted the ruling of the Cassazione n. 12193/2019, according to which adoption in particular cases was sufficient to protect the rights of the minor. As already said, that position will hardly be able to be maintained since 2024 when surrogate motherhood became by law a universal offence.

Of July 2024 is instead the article published on the website of Roma Capitale, in which the Mayor communicated the transcription of three foreign birth certificates for one girl and two boys, children of two mothers, marking a significant step in the recognition of the rights of same-sex parental families. This gesture, according to the Mayor of Rome, fits into a broader political commitment aimed at ensuring equal rights to all minors, regardless of family composition.

The Arezzo Civil Court, instead, recently addressed the case of two women, civilly united and cohabiting for over a decade, who had undertaken a path of medically assisted procreation in Spain, using eggs of one of the two, fertilised and then implanted in the uterus of the other. However, at the moment of registration of the birth in Italy, the Civil Status Officer had attributed maternity only to the woman giving birth, excluding the possibility of recognising as mother also the woman biologically linked to the twins.

The Civil Court, in its decree, reiterated that, according to current Italian legislation, maternity is exclusively linked to childbirth, as provided by art. 269 del codice civile and by art. 11 comma 3 del D.P.R. n. 396/2000. Legge n. 40 del 2004, indeed, prohibits access to medically assisted procreation techniques for homosexual couples, limiting them to heterosexual couples in situations of pathological infertility. In addition, the Arezzo judges highlighted that in several judgments, including n. 7413/2022, the Cassazione had already rejected similar requests, highlighting that the recognition of double maternity through rectification of the birth certificate is not in compliance with current legislation. Again, therefore, it has been underlined that the best interest of the minor can be ensured through adoption in particular cases, which creates parental ties without violating the legislative provisions.

Finally, it should be reported that after the judgment of the Corte Suprema di Cassazione, Sezioni Unite Civili, n. 38162, the circolare n. 3/2023, was issued, with which the Ministero dell’Interno sought to clarify a question of particular relevance regarding the transcribability of birth certificates formed abroad. The subject of the communication concerns, in particular, children born through the practice of gestation for others (so-called surrogate motherhood) and the consequent legal recognition of family ties in Italy.

The circular recalls the passage of the judgment in which the Court affirmed that the practice of gestation for others seriously harms the dignity of the woman and compromises human relations, regardless of the methods with which it is realised or of the purposes pursued. For this reason, neither the birth certificate formed abroad nor any foreign judicial measures recognising intentional parenthood can be transcribed automatically in Italy. Despite this, the Ministry asked Mayors to recognise what was established by the Court regarding the importance of protecting the fundamental rights of the child born through this practice, since the minor has the right to legal recognition of the affective and family bond established with the parent of intention. To ensure such rights, adoption in particular cases, governed by art. 44, comma 1, lettera d) della legge n. 184/1983, remains the legal tool suitable to confer to the child the status of child also with respect to the partner of the biological parent.

This communication, if at the date in which it was disseminated represented a crucial passage for same-sex parental couples who had resorted to surrogate motherhood, following the entry into force of legge n. 169/2024 will be of difficult application, since gestation for others, becoming a universal offence, is considered illegal even if committed abroad in countries where it is perfectly legal.

From this overview the absolute uncertainty of law and administrative practices when speaking of transcription of birth certificates of children of homosexual couples born abroad with MAP techniques and gestation for others can be highlighted. Such indeterminacy makes it essential to rely on professionals experienced in international family law, with particular regard to the topics that concern same-sex parental couples.

Boschetti Studio Legale is able to move competently between national law, international conventions and EU law, in order to protect the interests of homosexual couples and their children born abroad. With our team of lawyers equipped with a professional and empathic approach, we are committed to representing same-sex families, addressing cases of transcription of foreign birth certificates in Italy.

Foreign same-sex couples who wish to see their parental rights recognised in Italy find themselves facing a regulatory framework that is not favourable, alongside which however there is a constitutional and legitimacy case law, as well as that of the Corte Europea dei Diritti dell’Uomo, very fertile in addressing the rights of gay couples.

Boschetti Studio Legale, thanks to its consolidated experience in international family law, offers specialised and highly professional assistance. Our specific competence allows us to provide concrete solutions for the protection of the rights of LGBTQ+ families, both in the phase of preventive advice and in the management of any disputes or issues with civil status officers of Municipalities, when it is a matter of transcribing civil status acts in Italy.

As we have seen, the current situation presents different scenarios depending on the composition of the couple. For couples of women, the recent case law of the Cassazione has opened important prospects. In particular, judgment 23319/2021 confirmed the possibility of transcribing in Italy birth certificates formed abroad bearing double maternity. Take for example the case of a couple of women married in Spain: their child, born through medically assisted procreation and regularly registered with two mothers in the Iberian country, can see their status recognised also in Italy, thus ensuring continuity in family relations and certainty of rights.

More complex is the situation of male couples, when the child is born through gestation for others in countries where this practice is legal, such as Canada. Although GPA is prohibited in the Italian legal system, the Corte Costituzionale, with judgment 33/2021, underlined the urgency of protecting the rights of minors born through this practice. In these cases, the tool of adoption in particular cases can represent a solution to ensure the recognition of the bond with the parent of intention. However, it has already been observed that the transformation of surrogate motherhood into a universal offence considerably complicates things, being able to be a reason for excluding the scenarios opened by the Corte Costituzionale just mentioned.