Report
Italian court embraces child-focused family model, a victory for same-sex couples
As much as this principle is self-evident, it has been previously challenged by many municipal civil records officials, which often put obstacles in the path of same-sex couples.
The ban that was in effect until Thursday, preventing the “intended” mother in a two-mother family from registering as her own a child born in Italy as a result of medically assisted reproduction (MAR) carried out abroad, has been ruled unconstitutional. It is therefore consent – and consent alone – offered as part of a shared family plan that gives rise to the duties and rights proper to parents.
That consent is voluntarily given by both the biological mother and the intended mother. This was the gist of the Constitutional Court’s decision, which placed at the center of Thursday’s ruling the child’s moral and material interests, a fundamental principle acknowledged and protected by international, supranational and domestic legal systems. The overriding goal is the full development of the child’s personality, which must be fostered and safeguarded regardless of whether there are biological ties associated with those of parenthood.
As much as this principle is self-evident, it has been previously challenged by many municipal civil records officials, which often put obstacles in the path of same-sex couples. This has involved not only municipal administrations – with widely varying and unpredictable practices on whether the intended mother’s name could be entered on the birth certificate – but also public prosecutors, who in recent years have repeatedly sought to amend certificates that had already recognized both parents, biological and intended.
One example was in 2023, when the Padua prosecutor’s office and the Milan prosecutor’s office challenged 33 birth certificates registered from 2017 onward in Padua and three certificates in Milan. The ensuing court rulings were equally unpredictable: the Court of Padua ruled the challenges inadmissible (thereby confirming the certificates), while the Milan Court of Appeal upheld the challenges and ordered the records corrected.
In a situation of such legal uncertainty, the Constitutional Court found that there was a clear conflict with the child’s right to personal identity – deprived from birth of a clear and stable legal status – and with the right to be protected in matters linked to parental responsibility and the obligations arising from it. The judges established that the child’s best interests must prevail in these cases; and, they added, those interests cannot depend on whether the couple who embarked on parenthood is heterosexual or homosexual, so the fact that the parents are homosexual “cannot constitute an impediment to the recognized status of the newborn as their child.”
In this way, the Court opens the door to a family model that – thanks to social evolution and changing customs – is no longer confined to only two parents of different sexes linked by an affective bond. The same Court confirmed this in another important ruling, also issued on Thursday: while rejecting a question of constitutionality raised by the Florence court in a case brought by a single woman seeking access to MAR, it acknowledged that the legislative authority may allow MAR access to different kinds of family units: no reference to the “traditional family” is mandated by the Constitution. At the same time, the ruling excludes an absolute, unconditional right to parenthood, unless necessary for the satisfaction of the prevailing criterion of the child’s best interests.
Taken together, these rulings are of historic significance and importance. They also cast serious doubt on the constitutionality of the controversial Varchi law, which created a “universal crime” for Italians who resort to surrogacy abroad. That law now appears incompatible with the principles affirmed in the latest Constitutional Court decision.
Indeed, what room remains to protect the child’s best interests in Italy under that law? Very little, since the Varchi law calls for prosecution, prison terms and heavy fines for any couple returning to Italy with a child and a birth certificate duly issued under foreign legislation.
Originally published at https://ilmanifesto.it/prima-il-minore-altro-che-reato-universale on 2025-05-23