Children of two mothers, the Consulta rejects double surnames

Back to the Consulta the impossibility of giving the child of two mothers the surname of both the biological mother and the intended mother. The Tribunal of Lucca in an order referred to the Constitutional Court of Law 40/2004 and Article 250 of the Civil Code to the Constitutional Court for the part in which they prevent "the attribution to the child born as part of a project of heterologous medically assisted procreation practised by women, the attribution of the status of recognised child also by the so-called intentional mother, who, together with the biological mother, has given consent to the fertilisation practice and, in any case, where they impose the cancellation from the birth certificate of the recognition made by the intentional mother". The Tuscan judges, in an order of more than 30 pages, clarify the reasons why it is necessary to remedy the inertia of the legislature on this point.

In March 2021, the Constitutional Court, in Judgment No. 32, called on Parliament to intervene urgently in order to close the regulatory gap.

Today, after more than three years of legislative silence, recently stigmatised also by the President of the Constitutional Court, Augusto Barbera, the Court of Lucca, has decided to urge a new intervention by the Constitutional Court, to ensure that the personal and family identity of the children of two mothers, with all the rights that this entails, can no longer be compromised.

Since 2018, some mayors had started to form birth certificates indicating both the woman giving birth and the partner ('intended mother') who had consented to medically assisted procreation abroad.

In 2023, however, some Public Prosecutors' Offices, including those of Lucca and Padua, had asked the various competent Courts to delete the name of the Intentional Mother from the birth certificates of many children, believing that she could only adopt with 'stepchild adoption' the child conceived abroad also thanks to her consent, without however being able to recognise him or her directly at birth. In the opinion of the Court of Lucca, this is a path that does not guarantee swift or effective protection, with the consequence of leaving some minors deprived of recognition, even legal recognition, of ties that in fact already unite them to both members of the couple that decided to bring them into the world. What makes an intervention by the judge of laws important is combined with the problem of contrasting case-law. The protection of sons and daughters of two mothers," the Tuscan judges emphasise, "can no longer be subjected to the uncertainty of disorderly jurisprudential solutions, but must be referred to the Constitutional Court, so that there may be definitive clarity with a pronouncement of the Constitutional Court that is effective for all mothers' couples and not only for those involved in the Lucca appeal.