Two mothers, step child adoption and double surname even if the biological mother objects

The biological mother's refusal to adopt in special cases a child born with the medically assisted procreation, on the part of the intended mother does not block the step child adoption nor the attribution of the surname of the social mother. In fact, it is the child's best interest to maintain the emotional relationship established with the intended mother that prevails, if the latter, in spite of the couple's conflict, has never let the child lack her support and closeness. Nor does a period of estrangement affect the go-ahead for adoption if it is determined by the biological mother's ostracism and not by a personal choice. The Court of Cassation thus put an end to a long judicial battle between two mothers, who reproached each other for behaviour that could prejudice the harmonious development of the child.

In the first and second instance, it was the child's birth mother who had won the day, opposing the adoption requested by her ex-partner, from whom she had been living separately for two years. For both the court and the Court of Appeal, the denial of consent was an insuperable limitation, even considering the friction between the former couple. The Supreme Court had, however, annulled the decision of the Court of Appeal on remand, asking it to review the judgment.

The judges of legitimacy, in their order of 29 August 2023, affirmed that the child was entitled to recognition of the affective bond established and experienced with the intended parent. A protection ensured by adoption in special cases, a useful tool "to legally qualify the de facto bond between the child and the partner who has shared the procreative design and parental planning with the biological parent by participating in the child's care since birth". And the territorial court had moved along these lines, giving the go-ahead for the adoption and the attribution of the surname of the intended parent to be indicated after that of the biological mother. Hence the latter's new appeal rejected by the Supreme Court.

The judges of legitimacy emphasise that the judge must ascertain, concretely, the best interests of the child when he or she is called upon to assess the prerequisites of step child adoption. A verification that becomes particularly rigorous in the case of a dissegregated or conflictual family unit. However, according to the judgment, "such an assessment cannot result in an automatic presumption of parental unfitness of the applicant who is in conflict with the other parent, since the judge must instead value, according to a criterion oriented to the search for the greater good for the child, the quality of the affective bond established by the child with each parent and the latter's ability to effectively meet the child's developmental and relational needs".

With the further clarification that 'the child's interest is not necessarily identified with remaining within a united family nucleus, but in the possibility of maintaining significant and continuous relations with both parental figures, recognised by him as such, even in the presence of a situation of conflict between them'.