Judicial divergences: Milan and Brescia on the registration of children of same-sex couples

The family division in the Milan Civil Court of Appeal has ruled in favour of the appeal lodged by the Milan Public Prosecutor’s Office against the decrees of the Court which, on 23 June last, had authorised the transcriptions of the maternity certificates concerning the children of three female couples, conceived through assisted reproduction abroad.

The decision by the Court effectively has declared the registrations made in the Birth Certificate Register for these children are illegal.  The Court further stated that only the actual birth mother of the children can be designated as a parent on the child’s birth certificate.  This decision is important and significant in the legal context.   

The case of the transcripts of paternity/maternity recognition of same-sex couples came back to the attention of the Milanese judges during the appeal hearings held on 23 January, following the appeal lodged by the Milan Public Prosecutor’s Office against the decrees of the Court which had validated the transcripts concerning the children of three female couples conceived through in vitro fertilisation abroad, and had decided that the registration of children of female couples born through assisted procreation remained valid and could not be cancelled by the courts, but only through a procedure reserved to a few legitimate subjects, among which the ministerial bodies are not included.

In relation to the above cases, prosecutor Rossana Guareschi, with the support of deputy prosecutor Letizia Mannella and prosecutor Marcello Viola, filed an appeal, requesting that the judges correct the acts of recognition of the minors, removing the classification of the “intended” mother in addition to the “biological” one.

Referring to a 2019 Constitutional Court ruling and other case law, the Prosecutor’s Office emphasised the principle that in the Italian system does not permit two persons of the same sex to be parents of a minor at the same time.

The Ministry of the Interior also supported the Prosecutor’s Office, which requested that the appeals be accepted. Finally, the Milan Court of Appeal ruled, accepting the prosecution’s appeal, declaring the transcripts concerning the children of two mothers to be illegitimate.

The Court of Appeal of Brescia accepts the appeal for the registration of the children of same-sex parent couples

In the meantime, the Civil Court of Appeal of Brescia has recently handed down a judgment that has sparked debate and reflection on a crucial issue: the registration in the Civil Registry of the children of female same-sex couples born through medically assisted procreation abroad. In a revocation of the decision of the Court of Appeal of Milan, the court of Brescia rejected a lawsuit filed by the Ministry of the Interior seeking to erase the intended mother from the birth certificate of a case previously admitted by the Court in 2023.

While the Milan court based its decision on the absence of specific legislation, the Brescia judges adopted an evolutionary interpretation of the law. 

They argued that the legislator’s prolonged inaction justified the application of constitutional and supranational principles to fill gaps in the protection of children’s rights. This approach was qualified as a temporary intervention pending organic regulation of the matter. The Brescia court underlined the importance of ensuring better protection of children’s rights, especially in urgent or unexpected situations, such as the death of the biological father.

This judgment highlights the complexity of family and legal issues in contemporary Italy. While different courts adopt different interpretative approaches, a clear debate emerges on the need to update and clarify the legal framework to reflect changing family realities. Italy is gradually but significantly showing a greater openness towards creating a more inclusive society that respects different family forms. 

At Giambrone and Partners, we understand the legal challenges that modern families may face. We offer expert advice and assistance in family law, working to ensure that the rights and interests of all families, regardless of their structure, are protected. If you have any questions or need legal assistance, please do not hesitate to contact us. We are here to help you.

Cynthia Cortés Castillo, Digital Marketing Executive