A gay couple from Trento who had two children in Canada with the help of an egg donor and a surrogate mother cannot both be named as the children's fathers in Italy, the Court of Cassation ruled on Wednesday.
Instead, only the children's biological father will be listed as their legal parent, while his partner will have to apply for special permission to become their adoptive father – despite the fact that both men are named on the children's Canadian birth certificates.
The ruling by Italy's top administrative court ends a long legal battle for the family, who originally won their case at Trento's Court of Appeal in February 2017 to have both partners recognized as fathers. That decision was challenged late last year by Trento's public prosecutor, the mayor of Trento, and the Ministry of the Interior led by Matteo Salvini, head of the populist League party and a vocal opponent of parenting rights for same-sex couples.
Photo: Giuseppe Cacace/AFP
The decision is intended to “protect the dignity of pregnant women and the institution of adoption”, the judges wrote in their statement.
Surrogacy is illegal in Italy under all circumstances, and the court's decision potentially applies to heterosexual couples as well. Its ruling refers only to the “intended parent” – i.e. the partner who isn't biologically related to the child – without entering into matters of gender or sexual orientation.
“This is certainly positive, because it demonstrates that the legal problem did not depend on the fact that a gay couple was involved,” Alexander Schuster, a lawyer who has helped represent the Trento family, told La Repubblica.
Italy has typically taken a strict stance on surrogacy, with one former government minister comparing it to a “sex crime”. In 2011, Italian judges removed a baby born to a heterosexual couple with the help of a surrogate in Russia, accusing them of falsifying the birth certificate, and put the child up for adoption. The European Court of Human Rights subsequently condemned the Italian state and ordered it to pay compensation, but the child was never returned to its intended parents.
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Italy's position on same-sex parenting is murkier: in theory adoption is restricted to married couples, and therefore heterosexual couples, since Italy does not allow gay marriage, only civil unions. Yet a number of same-sex couples have been allowed to adopt their partners' children, while some regional authorities have recognized joint adoptions made abroad or permitted gay couples to register jointly as parents to children born of artificial insemination.
This week's precedent, however, makes it harder for local authorities to allow such exceptions. But Schuster did not rule out the possibility of the Trento family taking their case to the European Court of Human Rights, “with high probability of success”.
The ruling comes under a government that is shown itself resistant to expanding LGBT rights in Italy, which lags behind most of its Western European neighbours in this area. One of the loudest opponents of same-sex parenting is Minister for Families Lorenzo Fontana, who has said that same-sex parents “don't exist at the moment, as far as the law is concerned” and claims to believe only in “natural” families with one mother and one father.
“Say goodbye to parent 1 and parent 2, long live mummy and daddy,” wrote one of Fontana's allies and fellow League members, senator Simone Pillon, author of a controversial proposal to reform Italy's divorce and custody laws, as he celebrated this week's ruling on Facebook.