Parenthood, yes to the recognition of the intentional and genetic mother

Fully legitimate therecognition of the parenthood of themother who is not only an"intentional" but also a"genetic" mother, who has provided the oocyte, fertilised in vitro with the sperm of an anonymous donor and subsequently implanted in the womb of her partner. The Supreme Court of Cassation (judgment 4977/2026), moving in the wake of the Constitutional Court's judgment 68/2025, upheld the appeal of a couple of women against the decision of the Court of Appeal of Milan to 'delete' the name of the intended mother, transcribed after the green light from the Milan court. The case concerns a baby girl born in Italia with the heterologous fertilisation practised in Spain, with the technique 'Recepción de ovocitos de la pareja', that is, 'Reception of oocytes from the couple' (Ropa).

The Supreme Court recalls the preclusion that, under Italian law, was triggered precisely for children born in Italy, as opposed to those born abroad, of homogenous couples composed of two women. The limitation was in the prohibitions established by Law 40/2004 (Article 8). A regulation that reserves access to Pma techniques to situations of pathological infertility, which does not include that of same-gender couples. Hence the well-established orientation, before the Consulta of 2025, that 'only one person has the right to be mentioned as mother in the birth certificate'.

Moreover, the jurisprudence of legitimacy had ruled out that the indication of double parenthood was necessary to guarantee the child the best possible protection, identifying adoption in particular cases as the way to fully realise the child's pre-eminent interest in the creation of parental ties with the adoptive parent's family, without excluding those with the biological parent's family, in the light of the Constitutional Court's ruling 79/2022.

A restrictive orientation confirmed by the Constitutional Court with judgments 230/2020 and 32/2021 but disregarded, by the same judge of laws, with judgment 68/2025, after having urged in vain, an intervention of the legislature, so that it could find a reasonable balance between the different constitutional goods involved, respecting thedignity of the human person. The Supreme Court, moving along the path traced out by the judge of laws, rejected the appeal by the Ministry of the Interior that denied, precisely on the basis of the precedents of the Supreme Court, the possibility of giving a jurisprudential response - in the absence of regulatory intervention - to the claim of the intended parent, of a same-sex couple, to recognise the child of which the partner is the biological parent.

The Viminale emphasises the combined provisions of Article 29 of Presidential Decree 396/2000 and Article 250 of the Civil Code, from which it follows that the 'declaration of recognition of a natural child' can only be made by a heterosexual couple consisting of a father and a mother. A condition that, specifically, does not exist. Which would prevent the registrar from forming a birth certificate according to the wishes of the applicants. An argument that does not hold up in the light of Constitutional Court ruling no. 68, which affirmed that Article 8 of law 40/2004 was contrary to the Charter.