In a statement issued on April 27, 2022, the Italian Constitutional Court, through its Communication and Press Office, announced that, after examining the relevant issues of constitutional legitimacy, it has declared illegitimate all the rules of the Italian legal system that automatically attribute the surname of the father to children, as a founding element of personal identity. Before the filing of the grounds of the judgment, the Constitutional Court has also anticipated that the current rule will see the child assume the surname of both parents in the order agreed by them, unless they decide, by mutual agreement, to attribute only the surname of one parent. The present contribution aims at analyzing the state of the art and the possible developments while waiting for the necessary ministerial indications and the regulatory interventions that the legislator will almost certainly have to undertake on this point.

Introduction

The Constitutional Court has ruled on the issue of constitutional legitimacy of the rules governing the attribution of surnames to children in the Italian legal system. In particular, the Constitutional Court declared illegitimate art. 262, first paragraph, of the Italian Civil Code in the part which does not allow parents, by mutual agreement, to attribute to their child only the surname of the mother and in the part which, in the absence of agreement, imposes only the surname of the father, instead of that of both parents.

The case before the court of law today stems from the wish of both parents in Basilicata to transmit to the child born to the couple only their mother's surname, since the brothers, subsequently recognized by their father, had only their mother's surname. In the case in point, one of the reasons for the desire to give the children their mother's name was the fact that in the Lucanian community the entire family had always been known by everyone under their mother's surname only. However, the municipal authorities objected and only allowed the last child to be registered with a double surname. The question of legitimacy was therefore raised before the judge of law by the Court of Appeal of Potenza.

In addition to this, the Ordinary Court of Bolzano, by order of 17 October 2019 had already raised a question of constitutional legitimacy of Article 262, paragraph 1, Civil Code. , which in regulating the surname of the child born out of wedlock provides that: "If the recognition is made simultaneously by both parents, the child takes the surname of the father".

In this regard, the Italian Constitutional Court, in its ruling of 11 February 2021, no. 18 of February 11, 2021, ruling on the parents' agreement on the surname to be given to a child born out of wedlock, which precluded the possibility for the parents, by mutual agreement, to transmit to the child, at the moment of birth, only the maternal surname, raised - and ordered the Court to hear the case - the questions of the constitutionality of article 262, paragraph one, of the Italian Civil Code, in the part in which, in the absence of a different agreement between the parents, the acquisition at the birth of the paternal surname, instead of the surnames of both parents. According to the Court, the conflict concerns Articles 2, 3, and 117, the first paragraph, of the Constitution, the latter concerning Articles 8 and 14 of the ECHR.

Before that, the Constitutional Court, with the historic ruling No. 286 of 21 December 2016, had recognized the possibility of adding the mother's surname to the father's surname, accepting the question of legitimacy according to which the rule that imposes the automatic and exclusive attribution of the paternal surname only is detrimental both to the principles that guarantee the protection of the right to a name and to those on equality and non-discrimination between men and women in the attribution of the surname to the child, whether legitimate or natural.

At the time, the Ministry of the Interior, through the Central Directorate for Demographic Services of the Department for Internal and Territorial Affairs, was responsible for establishing the operational indications and interpretative clarifications of the above-mentioned pronouncement, which it did through information circulars of 19 January and 14 June 2017. In particular, the circular of 14 June 2017 provided some of the following further clarifications:

• since the pronouncement concerned the transmission "also" of the maternal surname, the consequence was the postposition of the latter to the paternal surname, not its anteposition;
• if the maternal surname was "also" affixed to the newborn child, all the onomastic elements of which the surname was possibly composed were also to be transmitted;
• the novelties under consideration applied to birth certificates formed from the day following the publication of the aforementioned judgment, which took place on 28 December 2016.

 

Application issues

Awaiting the publication in the Official Journal of the Court's ruling and the hoped-for interventions of the legislator that, hopefully, will clarify many points still obscure to date, it is useful to dwell on some problematic aspects, which will need to be regulated in detail, including through ministerial circulars as already happened in 2016.

First of all, what has been said above, in practical terms, does not mean that as of now it is possible to go before the Registrar of Civil Status and ask for the automatic attribution of the double surname or only that of the mother, and, where appropriate, in the order chosen by the parents. It is the same statement of the Constitutional Court to clarify that, after the filing of the judgment, it will be necessary to wait for the legislature to regulate the aspects related to the decision or delegate its implementation to secondary legislation. To date, the only way in which it is possible to choose to give the child a double surname is to register the birth at the Municipality, or before the Health Director of the facility where the birth took place. According to the ministerial indications previously issued, it is sufficient for the parents to express their decision verbally before the Registrar of Civil Status, or even by only one of the parents if married; otherwise, the presence of both is necessary.

Secondly, it will be necessary to deal with the question of the formalities necessary to certify the agreement between the parents - whether married or not - on the surname, before the registrar accepts the parents' request to give the newborn the double surname and in what order. This, is especially because it is often the father who makes the declaration of birth and, as you can imagine, he must, therefore, on that occasion, provide evidence of the agreement, by submitting a statement signed by the mother, most often, still hospitalized.

In this regard, it should be clarified that, in the absence of specific regulatory provisions, the Civil Status Offices may not require further documentary burdens from the interested parties for those provided by law. In fact, within the civil status system, the formalities that regulate the work of the offices are laid down by sectoral sources, and therefore by the Civil Code, by the regulations set out in Presidential Decree no. 39 of 3 November 2000, as well as by the decree of the Ministry of the Interior of 5 April 2002, containing the formulas for the drafting of deeds and minutes to be entered in the registers and kept on file.

It is, then, the same discipline of the attribution of a name to the unborn child that is based on the agreement of the parents, an agreement that is presumed and that do not need to be proved before the Official, since it is a presupposed element in the declaration of birth, even if made by only one of the parents. The attribution of name and surname is, in fact, a real act of exercise - one of the first - of parental responsibility, which does not imply an ope legis effect, but the prior and agreed choice of the parents.

Lastly, it will be necessary to clarify whether, as was rumored in the days immediately following the publication of the communiqué, there will be the possibility of multiple surnames in future generations born to parents with double surnames, or whether the children of the same family unit will be able to have different surnames. Well, since there is no rule to date that regulates the issue, it is hoped that the choice will be the founding criterion, allowing even, and all the more reason for future parents, at the birth of their children, to decide which surname to hand down and which, instead, to leave behind.

Nevertheless, the possibility that the ruling of the Constitutional Court could be retroactive should be ruled out as of now, as this would entail an excessive and unsustainable expenditure of public money.

In any case, as mentioned above, we will have to wait for the solution adopted by our legislator who, hopefully, will address all the unresolved issues. Lastly, it should be noted that on 15 February, the Senate Justice Commission began examining the bills that had been passed and then halted in the meantime.

Concluding remarks

This is a fundamental change in the Italian legal panorama, an ancient legacy of the patriarchal model of society that dominated in the aftermath of the birth of the Italian Republic. According to the Constitutional Court, the father's surname is nothing but "the legacy of an outdated marital power, no longer consistent with the constitutional value of equality between men and women". Nonetheless, following the condemnation of the Strasbourg Court, II sez., 7 January 2014, Cusan and Fazzo v. Italy, for having violated the rights of a married couple by denying them the possibility of giving their daughter the mother's surname, because "giving children the mother's surname is a right", the time seems finally ripe for Italy to set out on the path of other European countries and the world.

As is well known, in Spain children acquire a 'double surname', so that each person bears the first surname of both parents, in the order agreed by both of them. In case of disagreement, the child is given the father's first surname together with the mother's first surname. In Latin America, the same principle is applied, but there is an express limit to four surnames: the child can only acquire two, one from the maternal branch, the other from the paternal branch.

France and Belgium have stipulated that the parents choose together the surname to be given to the child and, in case of disagreement, both surnames are given in alphabetical order. The same applies in Luxembourg, where in the event of disagreement the surnames are drawn by lot. In Denmark, Norway, Sweden, and Austria, in the absence of a parental declaration, the mother's surname is automatically affixed by the State.

In the UK, Canada, Australia, and New Zealand, the choice is left free to parents, who can choose between their surnames and even decide on a different one.

As far as China is concerned, according to the Chinese Marriage Law the child can have either the father's surname or the mother's surname. It should also be noted that under the Chinese Citizenship Law it is sufficient for one of the parents to be a Chinese citizen to be granted citizenship.