Constitutional Court: the recognition of homogenitoriality is up to the Legislator

With the ruling in question, filed last November 4 ( text below ), the Council ruled on the issues of constitutionality raised by the Court of Venice with regard to law no. 76/2016 on civil unions and the Presidential Decree no. 396/2000 on civil status documents.

A discipline that, according to the referring court, would violate the rights of the so-called “intentional mother” (civilly united to the biological one) – precluding her from registering as a parent of the child born as a result of heterologous fertilization – but also those of the minor, resulting in an unreasonable discrimination on grounds of sexual orientation.

With a broad and articulated motivation, the Court excludes the vulnus of the constitutional principles, considering at the same time that it cannot take on the legislative inertia on this point.

It is therefore up to the Legislator – as interpreter of the collective will and after appropriate balancing of the interests at stake – to arrange an effective protection of parenthood also for same-sex couples.

Similarly, it will have to ensure the primary interest of the minor in these cases, currently protected only in jurisprudence, through recourse to the discipline of adoption in particular cases.

The case
A woman, civilly united to another, started, with the latter’s consent, a practice of medically assisted fertilization abroad from which a child was born in Italy.

The women then asked to be both registered as mothers in the child’s birth certificate, but were refused by the registrar, who noted only the name of the biological mother.

Hence the appeal to the judicial authority.

The question of constitutional legitimacy
The Court of Venice raised the question of the constitutional legitimacy of article 1, paragraph 20, of law no. 76/2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitation) and of art. 29, paragraph 2, of Presidential Decree no. 396/2000 and subsequent amendments (Regulation for the revision and simplification of the civil status system, pursuant to article 2, paragraph 12, of law no. 127 of 15 May 1997), with reference to articles 2 , 3 first and second paragraph , 30 and 117 first paragraph of the Constitution.

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