Two mothers, Consulta ruling applicable to all pending judgments
The Courts of Appeal that had upheld the couples' appeals must, however, review the grounds because before 22 May they could not do so
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Key points
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Constitutional Court ruling 68/2025, which struck down Law 40 for the part that preventedthe transcription of the mother's intention, is applicable to all pending judgments. For previous ones it will be necessary to make appeals. As for the judges who upheld - anticipating the Constitutional Court - the appeals of couples composed of two women, they must revise their motivations (saving the operative part) because before the verdict they did not have the power to do so. The Supreme Court, in its ruling 15075 filed yesterday, rejected the appeal by the Ministry of the Interior against the Court of Appeal's green light to the transcription of the name of the intended mother of two children born in Italy through the use of Pma in a country where it was lawful.
The position of territorial judges
.The territorial judges had considered an evolutionary interpretation of Law 40 /2004 to be possible. Waiting for the legislature to intervene, they had in fact considered it illogical and unreasonable to allow recognition of the intended parent in cases of violation of Law 40 by heterosexual couples or, again, in the permitted cases of heterologous parenthood for heterosexual couples, and to deny it in the case of the intended parent of homosexual couples.
The orientation of the Supreme Court
.The Supreme Court, while upholding the decision reached, in the light of the Constitutional Court's intervention, invites the Court of Appeal to revise its reasoning, in the wake of judgment number 68. And this is because "the ordinary judge could not, on his own, remedy the detected void of protection of the child's interest, also because, with the aforementioned judgment no. 32 of 2021, the Constitutional Court had drawn, on this ethically sensitive matter, the attention of the legislature, so that it could find a reasonable point of balance between the different constitutional goods involved, in respect of the dignity of the human person". For the judges of legitimacy there was therefore an invasion of the legislature's field.
In the inertia of Parliament, the Constitutional Court, the only one entitled to do so, intervened to eliminate a rule that was contrary to the Charter. What the judges should have done is to raise an incident of constitutionality, handing over the keys to the judgement to the Constitutional Court. An interpretation that is incompatible with the law is not, in fact, permitted 'because it would impermissibly substitute the will of the judge for that of the democratically legitimised legislature'. Considerations that lead the Court of Cassation to exclude "in point of law" the practicability of the motivational path followed by the Court of Appeal's sentence, challenged by the Ministry of the Interior, even though it was written after the warning to the legislator expressed by the Constitutional Court in sentence 32/2021.
Priority to the best interests of the child
A warning that the Supreme Court of Cassation reiterates also after sentence number 68 of 22 May. The need to safeguard the primary interest of the child, in line with the jurisprudence of the European Courts, imposed and still imposes - underlines the Court - "an urgent rethinking of the current legal framework, making urgent an intervention of the legislator aimed at bridging the gap between the factual and the legal reality in the relationship of the child with the intending mother". The Supreme Court rejected the Viminale's appeal, but asked for the correction "in law of the motivation of the Court of Appeal's decree, whose operative part is supported and sustained by the pronouncement of constitutional illegitimacy (sentence no. 68 of 2025)".
