Two mothers, paternity leave for the intentional mother

Ten days of abstention from work paid at 100% also for the intended mother in the two-woman couple. The Consulta, with its sentence 115, thus passes a blow on article 27-bis of legislative decree number 151/2001. A rule in conflict with Article 3 of the Charter, for the part in which it denies compulsory paternity leave to a female worker, an intended parent in a couple of women, legitimately recognised as parents in the civil status registers, after access to medically assisted procreation. The issue had been raised by the Court of Appeal of Brescia, which had found discriminatory the provision allowing only the father to take the mandatory paternity leave, equal to 10 days of abstention from work paid at 100%, thus excluding from the benefit the 'second mother' in a couple of women, considered both parents by the Italian state. A manifestly unreasonable disparity of treatment with respect to couples of parents of different sexes.

The law judge, in the wake ofJudgement 68 of 22 May 2025, recalls the legal ownership assumed by the two mothers who shared the parenting project. An obligation to educate, instruct, and look after the offspring that, even for the mother of intention, becomes, after the intervention of the Constitutional Court last May, a no-return route on a par with heterosexual parents.

The Court emphasises, once again, that "sexual orientation does not in itself affect eligibility for such responsibility (judgment No 33 of 2021)". And it recalls the child's overriding interest, without there being others of equal standing, in "being recognised as the child of both figures - the biological mother and the intended mother - who have assumed and shared the parental commitment through recourse to medically assisted procreation techniques legitimately practised abroad".

The 'benefit' in question is relevant - the Constitutional Court states - because it meets the need to 'devote adequate time to the care of the child, also through the modulation of the time to be devoted to work, consistent with the purpose of promoting the exercise of parental duties according to a better organisation of family needs, in a process - the judgment states - of progressive enhancement of the functional aspect of parenthood, which remains identical in the two different formations, the homosexual couple and the heterosexual couple. Within a couple, both parents are, in fact, called upon to provide for the physical, psychological and educational well-being of a child, because the parental bond arises precisely from the assumption of responsibility in keeping 'with the very essence of the parent-child relationship'.

The Court, in the case examined, shifts the focus to the recognition of the differentiated tasks of the two figures of the mother and father in a compulsory care system structured on the infungibility of roles, in which it is possible to identify in homogenous female couples a figure comparable to the paternal figure within heterosexual couples, distinguishing between the biological mother, who has given birth, and the intentional mother, who has shared the commitment of care and responsibility towards the newborn child and actively participates in it.A distinction that is also applicable - the Court points out - in cases of nonlegitimising adoption, in which the child's relationship with the biological mother is flanked by the child's bond with the intended mother.The judgment, although its scope is limited to the question posed concerning two mothers, could pave the way for the affirmation of the same right also in the case of a couple consisting of two men, who have assumed the status of parents in the context of step child adoption.