Constitutional Court

Consulta curbs discretion over children's rights

For insiders, an end has been put to the back-and-forth on the non-disposable right to bigenity for children of two mothers

by Patrizia Maciocchi

24 May 2025

5' min read

Key points

Mirabelli's position
Queirolo's position
Fossati's position

5' min read

A revolutionary ruling that stops the crusades against children's rights. A principle of legal civilisation in the interest of children. A blow to the figure of the father that opens the way to the gestation for others. The decision, with which the Constitutional Court ruled on Thursday 22 May that it was illegitimate to refuse to record in the birth certificate also theintentional mother of a child born in Italy throughmedically assisted procreationpracticed abroad in a country where the practice is lawful, divides the political camps in Italy and splits public opinion. There has been no shortage of alarmist readings that fear risks of drift such as to uproot the anthropological principle of the family. For insiders, the Constitutional Court does not open the way.

Mirabelli's position

For the president emeritus of the Constitutional Court, Cesare Mirabelli, if there is a critical element in the ruling, it is not the one hypothesised by some members of the majority. "The central point of the Constitutional Court's ruling lies in the commitment of the biological mother and the intended mother to be parents. An assumption of responsibility from which derives a series of obligations: from maintenance to education. Hence the pre-eminent interest of the child, born in Italy, to acquire the status of child from the moment of birth. The same effect,' Mirabelli states, 'cannot be fully achieved with the current discipline of adoption in special cases, because it is an institution that presents criticalities that have not been overcome by the legislature, first and foremost the time and costs'.

But it is precisely in the basic assumption of the judgement that lies - in Cesare Mirabelli's opinion - the aspect that gives rise to perplexity. "The judge of laws makes the priority interest of the child derive directly from the common commitment of the two mothers. An automatism,' Mirabelli recalls, 'that even the Court of Cassation had excluded, asking it to assess the child's interest on the individual case. A task that should be entrusted to a judge. Obligations arise from commitment but not always a filial relationship. The lack of any concrete verification of the child's interest means that this is only the reflex effect of a parental will".

We are, however, faced with novelties for which it is difficult to find a legal solution. It is not daring to prefigure attempts to extend the scope of the decision. But the case of the gestation for others involving two fathers does not lend itself to analogies because, as the Court has made clear, it involves the gestating woman," Mirabelli concludes, "who is a third party with respect to the couple, whose dignity precludes her being a legitimate carrier for others.

Queirolo's position

In the opinion of Ilaria Queirolo, professor of private international law at the University of Genoa, the Constitutional Court's ruling is very balanced and has a perfectly circumscribed scope. "The Court has made it very clear that it did not address the case of surrogacy, nor did it offer a gateway in Italy to Pma for same-sex couples, whose desire for parenthood is not supported. Between so-called gestation for others,' Ilaria Queirolo emphasises, 'and surrogacy there is a fundamental difference: with Pma it is the mother/parent who carries the pregnancy to term; in surrogacy it is a third person, i.e. the surrogate mother, who carries the pregnancy to term. The judges of the laws express absolute respect for the discretionary scope of action of the Italian legislator, which prohibits Pma for same-sex couples, as well as surrogacy under all circumstances'.

The Court thus merely eliminated a vulnus in the protection of the child, ensuring the child's right to b>beneficial parenthood, without the intended parent being forced to use the instrument of adoption in special cases. "The child is thus better protected in terms of time and, at the same time, shielded from the risk that the intended parent changes his or her mind and takes a step backwards," Queirolo says, "by not proceeding with the adoption application in special cases. The couple can enter a crisis and the non-biological parent can change his or her mind about taking full responsibility for the child. But after Thursday's ruling, the parents' joint commitment becomes a dead-end street in terms of guaranteeing the child's best interests. The Consulta, in its decision, recalls Article 8 of the Convention on Human Rights and the Convention on the Rights of the Child: international sources that establish principles to be read in perfect harmony with the Constitutional Charter, and do not lend themselves to extensive interpretations".

Certainly when the law focuses so much on one issue, such as parenting and children's rights, there may be attempts to apply it by 'analogy'. "But the decision of the Consulta," concludes Ilaria Queirolo, "does not seem to offer any glimmer of hope in this regard.

Fossati's position

The absence of a counter-interest of equal weight to the child's pre-eminent interest in parenthood. This is the most important step in the decision adopted by the Constitutional Court in the opinion of Cesare Fossati, a family lawyer, one of the founders and former president of the National Observatory on Family Law. "The Court reaffirms the absolute centrality of the child's interest in the regulatory system. This is the most relevant aspect. There is no right that is neither legally, nor sociologically, nor ethically more relevant - says Fossati - than that of the new born child to full filiation. Starting from here, the Constitutional Court puts a stop to the disparity of treatment that has been seen in recent years, with some civil registrars deciding whether and when to transcribe the birth certificate indicating both mothers and the Pm whether or not to appeal. These disparities are unreasonable and constitute injury to the child's right to a family. Nor can it be said that the entry of a child into a homogenous family may have negative repercussions on the educational level or on personality development. Within the framework of the principles outlined," Cesare Fossati points out, "the homosexual nature of the couple that initiated the parental pathway in question cannot constitute an impediment to the child's status as a recognised child.

In its ruling no. 68, the Consulta specifically examined article 8 of law 40. 'The law is 20 years old and has big cracks,' Fossati concludes, 'more than others it needs a revision or to be completely rewritten, because it is no longer in step with changing sensitivities and social realities. The rest is ideology'.