Court of Cassation

Survivor's pension for children of gay couples: united sections of the Supreme Court will decide

The Supreme Court asks the United Sections to assess the constitutionality of the rules prohibiting survivor's pensions for the children of gay couples. The decision could have a significant impact on the recognition of the rights of same-sex couples

by Patrizia Maciocchi

21 August 2024

2' min read

2' min read

Charter and Convention of Human Rights in hand, it will be up to the United Sections to decide whether the domestic rules prohibiting the recognition of the revivor's pension to the surviving partner who cohabited before the civil union and to the children of gay couples born through surrogacy are of dubious constitutionality.

The Court of Cassation, in its Interlocutory Order 22992, summons the Supreme Court, aware that the only way to remove an obstacle to the recognition of a fundamental right lies in the collegial choice of summoning the Consulta.

The case

On the table of the Supreme Court of Cassation came, in fact, the appeal of the Inps against the decision of the Court of Appeal of Milan to recognise the survivor's pension to the surviving member of a homosexual couple.

The two men, bound by a stable cohabitation, had had a child, born in the United States in 2010 through assisted fertilisation, and registered in Italy as the child of the biological parent only.

In 2017, the US judgement establishing the paternity of the intending parent, who died in 2015, was transcribed in Italy. For the surviving parent, the judicial route was opened to assert the right to an indirect pension for him and his child. The plaintiff had collected a double no in the first instance: no survivor for him because cohabitation had taken place before the law on civil unions, the so-called Cirinnà 76/2016; no also for the indirect pension to the child because surrogacy is forbidden in Italy, due to its contrary to public order.

The Court of Appeal's ruling

The Court of Appeal's decision was different: with a constitutionally oriented ruling, it recognised in favour of the members of a homosexual couple 'the right to treatment equal to that guaranteed to married couples'. Hence the Inps was condemned to pay the arrears as well, with interest. With the inevitable appeal to the Court of Cassation by the National Social Security Institute.

Capital issues

And the Supreme Court is today asking the Joint Sections to assess the discriminatory value of the 'no' pronounced by the public administration 'obliged' to deny the right in compliance with the law. The ermellini emphasise that the issues on the table are such that they arise in a great many cases, and concern the interpretation of the rules in force with respect to issues of "paramount importance, which touch on the intertemporal discipline dictated by Law No. 76 of 2016, the corollaries of the pronouncements made by this Court in unified sections on the protection of children born from surrogacy - the order reads - and the very latitude of the anti-discrimination protection, in its interrelations with the implementation of the law".

Diritti, Sciarra: tutelare figli nati da coppie di stesso sesso

An object of contention linked to many interests safeguarded by the Constitutional Charter and international sources - the Court warns - which concerns an aspect that has not yet been examined by the jurisprudence of legitimacy.

Hence the clear need to ensure systemic and not piecemeal protection 'in the public social security sector, which calls into question imperative needs for certainty and predictability and also requires safeguarding the sustainability of the system as a whole'.