The Italian Constitutional court, by order no. 10844 on 4th April 2022, considered legitimate the refusal of the officer of civil status to record and/or recognize same-sex parents on birth certificates. This confirms the general Italian jurisprudential orientation, does not leave room for a new and less radical direction.
1. Background of the case
In Italy, access to medically assisted procreation techniques is allowed only in cases of sterility and infertility and for couples of different sexes as specified by article 4 paragraph 1 and Article 5 of law 40/2004, precluding access to same-sex couples.
Two women, long united in a stable emotional relationship, chose medically assisted procreation in Denmark, where the law permits access to same-sex couples. When they came back to Italy, they asked the registrar to proceed with the indication of the birth certificate of both mothers, the one giving birth and the so-called intentional donor of ovules. However, the officer did not accept to proceed with such registration.
The women appealed the officer’s refusal to register, citing Article 95 of Presidential Decree No. 396/2000, which permits rectifying civil status records or opposing registration refusals, to the Court of Piacenza. Yet, it rejected the appeal.
Then, a claim against such a decision was filed to the Court of Appeal of Bologna, which confirmed the decision in the first instance. At this point, the women decided to proceed by appealing to the Court of Cassation.
The Court of Cassation rejected all the reasons for the appeal, confirming the decision of the Courts. The Court of Cassation referenced judgment no. 6383/2022, ruling that the request by the two mothers cannot be accepted because Italian law excludes medically assisted procreation for same-sex couples (L. n. 40 of 2004, art. 4, paragraph 3).
2. The issue in the rest of the world
Even in other countries, the issue regarding the recognition of the intended mother and gestational mother as parents of the child born from artificial procreation practices is a much-debated topic. Only recently did New York recognize both same-sex parents on birth certificates, and in 2016, Ireland and Australia’s legislatures approved same-sex adoption. Some other countries, instead, have still much stricter legislation regarding children born through medically assisted procreation techniques from same-sex couples.
3. Difficulty of finding a balance between the interests
The issue involves sensitive matters requiring the legislator to carefully balance competing interests, respect human dignity, and protect the rights of the (unborn) child. The principle of “the best interest of the child” must be taken as a reference for any decision in which minors are involved.
