Assisted procreation, both mothers may recognise the child

It is unconstitutional to prohibit the recognition of a child, born in Italy as a result of medically assisted procreation (MAP) practised abroad, by both mothers of a same-sex couple. Recognising as mother only the woman who gave birth and not the so-called intended mother, who gave consent to the fertilisation practice, violates Articles 2, 3 and 30 of the Constitution. This was established by the Constitutional Court with sentence number 68, filed today, which considered the questions of constitutional legitimacy raised by the Court of Lucca to be 'well-founded'.

"Article 8 of the assisted reproduction law, number 40 of 2004, is constitutionally unlawful in so far as it does not provide that the child born in Italy to a woman who has resorted abroad, in compliance with the rules in force therein, to medically assisted procreation (PMA) techniques also has the status of recognised child of the woman who, likewise, has given her prior consent to the use of such techniques and to the correlated assumption of parental responsibility,' reads the Consulta's statement.

"The Court, after clarifying that the issue does not concern the conditions that legitimise access to PMA in Italy," the note explained, "held that the current impediment to the child born in Italy being able to obtain from birth the status of recognised child also of the woman who has given consent to the fertilisation practice abroad together with the biological mother does not guarantee the best interests of the child and constitutes a violation of Article 2 of the Constitution, on account of the injury to the personal identity of the child born and its right to have a certain and stable legal status recognised from birth; of Article 3 of the Constitution, on account of the unreasonableness of the current rules which cannot be justified in the absence of a counter-interest of constitutional rank; of Article 30 of the Constitution, because it impairs the rights of the child to have the rights connected with parental responsibility and the consequent obligations towards the children recognised from birth and towards both parents".

"The declaration of constitutional illegitimacy is based on two observations: the responsibility deriving from the joint commitment that a couple assumes when they decide to resort to medically assisted reproduction to generate a child, a commitment from which, once assumed, neither of the parents, and in particular the so-called intending mother, can escape; the centrality of the child's interest in that the set of rights that he or she has vis-à-vis his or her parents should be valid not only vis-à-vis his or her biological mother, but also vis-à-vis his or her intending mother,' the Constitutional Court observed.

At the same time, however, the Constitutional Court, in another decision, ruled that "the law that does not allow single women access to medically assisted procreation (PMA) is neither unreasonable nor disproportionate. The Constitutional Court held that the questions of constitutional legitimacy that had been raised on the law that does not allow single women access to medically assisted reproduction were unfounded. According to the Court, it is also in the interest of future children that the legislature decided 'not to endorse a parental project that leads to the conception of a child in a context that, at least a priori, excludes the figure of the father'.