The Supreme Italian Court has denied the amendment of the daughter's birth certificate of a homosexual couple and reaffirmed the possibility of adopting in particular cases.

 

Introduction

In the recent judgment of the First Section on 25.02.2022, the High Court of Cassation, decision No. 6383, by pronouncing on the amendment of the birth certification, declared the legitimacy of the refusal of the civil status registrar concerning the revision of the birth certificate of a child, as two women asked to indicate both of them as mother. The Court explained that the Italian law does not allow to recognise two people as parents of a child without having a biological link to him/her – beyond the cases permitted by law – in the same way for the recognition of a child born under marriage or for other allowed issues of child recognition. The judgment took specific reference to the daughter of a homosexual couple, whom two women gave birth through the technique of assisted reproduction, which was carried out abroad – in the context of the so-called reproduction tourism - thanks to an anonymous donor and the fertilised ovum of the partner of the parturient woman. 

Firstly, it is opportune to consider the longstanding jurisprudential debate on the possibility to recognise and acquire in the civil status register the international birth certifications, who was given birth through artificial insemination based on norms, whose compatibility with the global public policy is controversial. In some cases, furthermore, the resort to artificial insemination is not allowed in Italy, such as surrogate maternity.

A tolerant view regarding this matter is prevailed, which is furthermore following the international jurisprudence, which emphasizes that the sole circumstance that the Italian legislator does not regulate, but only prohibits to resort to some fertilisation techniques, does not make the recognition and registration of international birth certificates collide with the global public policy. This is due to the necessity to give primacy to the principle of the prevailing interest of the child, which the Italian Constitution primarily protects.

Evolution in law and jurisprudence 

The Italian Law No. 40/2004, entitled "Regulation of the assisted reproduction", has given rise to numerous controversies relating to the extension of its application, particularly regarding the personal requirements. The disputes arise especially and specifically regarding homosexual couples, which desire to give birth to a child through assisted reproduction.  

This law limits the possibility of using the assisted procreation technique to the cases of certified sterility, which are not removable otherwise, and to adult couples of different genders, alternative married, cohabitant, potential fertile, and both alive. 

Homosexual couples are excluded from the range of people legitimate to resort to assisted procreation. 

Applying the Italian Law No. 40/2004 is highly controversial, both concerning the cases allowed and to the legitimate people. 

On one hand, it can be considered that the abovementioned Law No. 40/2004 should be widely interpreted about the rights of homosexual couples, which desire to resort to assisted reproduction, as it should be regarded that beyond biological parenthood also affective and psychological parenting exists, which is worthy of recognition as well. 

On the other hand, it can be assumed that an extensive interpretation of the scope of the people, which under Article 5 of the Italian Law No. 40/2004 are legitimate to resort to assisted reproduction. 

The Unite Sections of the Italian Supreme Court, resolving a precedent jurisprudential contrast, established that the recognition of an international act of recognition of an intentional Italian parent as the parent of a child, who was given birth abroad through the surrogate maternity, is incompatible with the prohibition of surrogacy according to the article 12, paragraph 4, of the Italian Law No. 40/2004.  

This prohibition represents a principle of public policy, as it protects fundamental values, such as the dignity of the pregnant woman and the institute of adoption. In the balance regulated by law, these values turn out to be prevalent in the child’s interest, and judgments cannot modify this law balance. 

However, the adoption institute gives the possibility to realise other forms of parenthood according to article 44, paragraph 1, letter d) of the Italian Law No. 184/1983. 

Consequently, the compatibility of the international jurisdictional acts with the Italian public policy should be considered equal to the central values of the Constitution and the global values. 

In addition, it should also be considered how these principles are applied in the single institutes and how judges interpret them. Using these values and the judicial interpretation makes the law "alive" and essential for the development of the public policy, which has to be intended as a set of values of the legal system.

The judgments of the Constitutional Court 

The constitutional legitimacy of the subjective and objective limits for assisted reproduction had been the object of several judgments of the Italian Constitutional Court.

Notably, in the sentence No. 211 of 2019, it was confirmed that there is no internal incompatibility with the Law No.40/2004, as the physiological infertility of the homosexual couple is not comparable to the absolute and irreversible infertility, which is due to reproduction diseases of the heterosexual couple.

The Court considered the exclusion of homosexual couples from the scope of people who are legitimate to resort to assisted reproduction, to be under the legal system. Therefore, it does not represent any gender discrimination. 

Any violation of the article 2 of the Italian Constitution can be seen in the Italian Law No. 40/2004, as the Court pointed out. Given that the notion of “social formation” of article 2 also involves homosexual relationships, the Court remarked that the Constitution does not delineate an idea of family related to children. 

The Court considered the article 31, paragraph 2, of the Italian Constitution, which regards maternity and the aspiration to become a parent, as not violated. 

As far as the violation of the health rights is concerned, the Court considered the presence of reproduction diseases as a significant aspect for the heterosexual couple, as it affects the normal fertility, but as an irrelevant variable for the homosexual couple, which is naturally sterile. 

Concerning the contrast with the conventional parameters, it was stated in the same judgment that the Court of Strasbourg has ruled out that a national law that reserves the practice of ART to infertile heterosexual couples, assigning it a therapeutic purpose, may give rise to unequal treatment, relevant to the effects of Articles 8 and 14 ECHR, concerning homosexual couples, given the nonequality of their respective situations. Furthermore, it can be added that, as the New York Convention provides, homosexual female couples cannot be considered, as such, "disabled." Moreover, the art. 11 Cost. It was regarded as "an irrelevant parameter, given that the indicated international conventions do not entail limitations of sovereignty vis-à-vis the Italian State (sentences no. 162 of 2014 and 96 of 2015)".

Subsequently, with judgment no. 33 of February 9, 2021, the Constitutional Court, pronouncing on the compatibility of the principles on surrogacy expressed by the United Sections no. 12193 of 2019 with the protection of the identity of the child and its relationship with the couple which had resorted to assisted reproduction, rights recognized by constitutional and union rules, because of the primacy of the so-called best interest of the child., has established the inability of the "living law", crystallized by the judgment of the United Sections above, to meet the needs of recognition of the parenthood with the intended parent arising from the Constitution and the conventional and supranational sources in force.

The reasons of the First Section of the Court of Cassation

About the case in question, the Court of Cassation has held that it is not admissible in the Italian legal system, outside the cases explicitly provided by law, to realise other forms of parenthood, when released from a biological relationship, with the same legal instruments provided for the child born in marriage or otherwise legally recognized.

Not even the existence of a genetic link between the child and the person who is sentimentally linked to the one who gave birth, even as a donor of the oocyte - in the case sub iudice, it is a woman - was considered sufficient by the Court of Cassation to interpret in an extensive sense the rules of law in force concerning the subjects entitled to the recognition of the born child, first of all, the article 250 of the Civil Code.

The Supreme Court has recalled that, because of the non-existence of scientific certainties or data of experience regarding the fact that the inclusion of the child in a family formed by a homosexual couple has negative repercussions on the educational level and the development of the child's personality, the recourse to adoption in special cases remains constitutionally permissible, under an extensive interpretation of art. 44, paragraph 1, letter d), of Law no. 184 of 1983, in favor of the same-sex partner of the child's biological parent - see Court of Cassation, Joined Chambers, No. 12193 of 2019-. 

The Court of legitimacy also has specified, again in the context of the law no. 6383 that it should be reserved to the legislator a precise regulation about the possible expansion of the scope of people entitled to resort to the ART and to recognise the child. The judges cannot replace the discretion of the legislator. 

Indeed, in the judgment in question, the Supreme Court has done nothing more than disavow its previous ruling No. 1842 of 2022 - moreover, not referred to at all -and invoke those principles of the law of decision of the Joined Chambers in 2019 that it had considered outdated in January. The Court denied the existence of gaps in the matter, affirming the suitability of the institution of adoption in special cases to protect the right of the child born through assisted fertilization or surrogacy and the link with the parent of intention. 

In any case, it should be pointed out that this “return to the past” could prove to be merely temporary, since there is a “regulatory gap”, which is difficult to fill by way of interpretation, as pointed out by the Supreme Court itself in the order - just before - No. 1842 of January 21, 2022, the Supreme Court referred the case to the First President for possible assignment to the United Sections.

Conclusion 

In conclusion, the judgment under review should be considered discontinuous with the same Section's previous decision No. 1842 of 21.01.2022.

Should an actual void of protection of the rights of the born be found, an intervention with the purpose of an extension of such protection should be reserved to the legislator's discretion.

Indeed, the Constitutional Court, with sentence No. 32 of 2021, had already emphasized the hope of a discipline on the matter that organically identifies the most appropriate way of recognition of the stable emotional relationship of the intentional parent to the child, born through medically assisted procreation practiced by same-sex couples.