Italian Constitutional Court Rules on Same-sex Couples’ Access to Parenthood Through Medically Assisted Procreation Abroad

The author of this post is Lorenzo Acconciamessa, a PhD student at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By a ruling of 4 November 2020, the Italian Constitutional Court declared that the combination of Italian rules precluding the formation of a child’s birth certificate that mentions two women as mothers is not at odds with the Italian Constitution. However, it acknowledged that the Constitution does not preclude the Parliament from reforming such rules and, therefore, from allowing the formal and direct recognition of same-sex parenthood in Italy.

The Facts

The case concerned a same-sex couple of Italian nationals who had entered into a registered civil union in Italy and had decided to have a child. However, provided that the Italian Statute on Medically Assisted Procreation precludes same-sex couples from resorting to such practice in Italy, they went abroad, where one of them conceived a child. Then, they went back to Italy, where the biological mother gave birth to the child. The Registrar of the Municipality dismissed their request to have the intended mother indicated as parent in the birth certificate and, accordingly, the latter only mentioned the biological mother.

The couple asked the Tribunal of Venezia to rectify the birth certificate, since they wanted both of them be mentioned. However, the Tribunal acknowledged that the legislation in force in Italy does not allow for such a ruling. In particular, it considered that the prohibition of direct recognition of same-sex parenthood arises from the combined application of the Italian Statute on same-sex partnerships and the Regulation concerning the Registry of births and deaths, as interpreted in the light of the above-mentioned prohibition to access to medically assisted procreation.

The Question Submitted to the Constitutional Court

According to the Tribunal, such combination of norms is at odds with the Italian Constitution and with some rules of international human rights law, namely those stipulated in Articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 24, paragraph 3 (right to a relationship with both the child’s parents), of the Charter of Fundamental Rights of the European Union, and Article 2 (right to equality and non-discrimination) of the UN Convention on the Rights of the Child.

In a previous post in this blog I have explained that, under Article 117, paragraph 1, of the Italian Constitution, as interpreted by the Constitutional Court, international treaties in force for Italy cannot be derogated from through legislation. Thus, domestic legislation inconsistent with an international obligation of Italy must be considered to be unconstitutional and declared void.

In the Tribunal’s view, the result of the combined application of the said rules violates the parents’ and the child’s fundamental rights. As for the formers, it breaches their right to parenthood and to procreation, as well as the prohibition of discrimination on grounds of sexual orientation and financial status. As a matter of fact, if the couple had the possibility of giving birth to the child abroad, they would had the right to obtain the record of the foreign birth certificate mentioning both of them as parents, pursuant to the case-law of the Italian Supreme Court (which refers to same-sex female couples, not same-sex male couples). As for the child, the Tribunal considered that the latter’s best interests demand the parental relationship be established with the biological and the intended mother.

The Ruling

The Constitutional Court considered that the non-recognition of same-sex parenthood is not at odds with the Italian Constitution, nor with the international human rights norms invoked by the Tribunal: it does not violate the parent’s and/or the child’s fundamental rights.

Those instruments, in the Court’s view, do not guarantee a right to become parents, nor a right to same-sex parenthood. At the same time, given the natural infertility of same-sex couples, limiting their access to parenthood does not involve an illegitimate form of discrimination and falls within the State’s margin of appreciation, as established by the European Court of Human Rights (ECtHR) in the 2019 Advisory Opinion.

In this regard, it should be considered that in 2018 the ECtHR had the opportunity to rule on same-sex couples’ right to access to medically assisted procreation. It dismissed the case on admissibility grounds, given that the applicants had not exhausted the domestic remedies provided for by the French legal order (Charron and Merle-Montet v. France). Therefore, in the view of the subsidiarity principle, the ECtHR held that domestic courts should have had the possibility to rule on the matter.

The (in)admissibility decision, however, does not exclude that the ECtHR could rule in the future that Articles 8 and 14 of the ECHR do require to allow same-sex married couples to have access to medically assisted procreation at the same conditions than heterosexual couples.

It remains that, according to the Constitutional Court, the right to same-sex parenthood is not currently recognized as a fundamental right and, therefore, cannot be invoked for declaring void the domestic rules allegedly violating it. On the other hand, the Constitutional Court admitted that the Constitution and international human rights law do not preclude Italy from recognizing that right. Nevertheless, provided that it is a sensitive issue involving a delicate balancing of interests, it falls within the Parliament’s exclusive margin of appreciation.

As for the best interests of the child, the Constitutional Court recognized that it is true that Italy has a duty to recognise the relationship between the child and the intended mother. However, provided that the conditions established by the ECtHR in the above-mentioned Advisory Opinion are fulfilled (namely, (i) effective recognition of the relationship, (ii) rapidity and (iii) assessment of all the relevant circumstances in the child’s best interests), the State enjoys a wide margin of appreciation in choosing the legal instrument for establishing such relationship.

The Constitutional Court considered, again, that Article 44, paragraph 1, of the Italian Statute on Adoption allows the intended mother to adopt her partner’s child. The so-called “adoption in particular cases”, however, does not create a full parent-child relationship from a legal point of view.

In my view, the Court failed to take into consideration the recent developments in the ECtHR’s case-law, notably as expressed in its recent ruling in the D. v. France case. In that case, the ECtHR concluded that Article 8 had not been violated precisely because the French legal order allows the intended mother to apply for the full adoption of the partner’s child. Even in this regard, however, the Constitutional Court concluded that a “different and wider protection of the child’s best interest” would be constitutionally legitimate, and that therefore the Parliament could reform – in the exercise of its own political discretion – the current legislation with the view of allowing the full-establishment of the relationship between the intended mother and the child.

Conclusion

The Constitutional Court did not rule, as the Tribunal had asked, that the recognition of same-sex parenthood is required by the Italian Constitution and international human rights law. The Court merely recognized that, in any case, neither the Constitution nor international human rights law prohibit same-sex parenthood. It remains to be seen whether the Parliament, in the exercise of its political discretion will decide to reform the current legislation in Italy concerning those issues.

Despite the timid recognition of the (hypothetical) constitutional legitimacy of same-sex parenthood, the Constitutional Court opted for exercising its self-restraint in favour of the legislator. It seems that the Court is not ready to rule on such sensitive and ethical issues.

In the meantime, the Court has announced that on 27 January 2021 it will hold a public hearing in the case concerning the constitutional legitimacy of the Italian rules of private international law (currently) precluding the recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent.

Will the Court continue to exercise its self-restraint approach?