The famous Italian singer Tiziano Ferro recently announced his divorce from his husband. The news caused quite a stir in the media, not only because of frivolous gossip, but also because it brought public attention back to LGBTQIA+ rights, particularly, to same-sex parenting.
Under the Italian law, Ferro is not allowed to be registered as the father of his children at the Italian consulate because surrogacy is still considered a crime in Italy (although same-sex couples can enter into a civil union, but not marriage, they are not allowed to enter into filiation proceedings). Given this impossibility, Tiziano’s children do not have Italian passports and are just considered US citizens, impeding Ferro from taking them back to Italy with him.
Already in 2022, when Tiziano Ferro lived in Los Angeles, he stated that he did not want to return to his country of origin with his family because, in this way, his children would be “entitled to only half of the parental rights even if there are two people who can take care of them”, adding that “bringing them with an Italian passport would only cause more disadvantages”.
This situation may considerably complicate the process of divorce and custody of the children, who will presumably have to be subject to American law and courts to determine the visiting arrangements, the type of custody and the country in which they will reside, always taking into account the best interests of the children.
In light of the current legislative situation and political climate in Italy, it is easy to come to the same consideration: in Italy, same-sex couples, in particular those formed by two men, and their children, lack protection.
At present, in the absence of legislative intervention, Italian municipalities decide autonomously, on a case-by-case basis, whether to transcribe foreign birth certificates and whether to include both the biological parent and the intended parent on the document.
In case of refusal, the couple has the option of appealing to the court, without any certainty as to whether the request will be granted.
The situation, as of January this year, became even more complicated due to a ministerial order to mayors that has imposed the suspension of the registration of birth certificates of children of same-sex couples, on the basis of a decision of the Italian Court of Cassation of December 2022, according to which – in the case of surrogacy, which is considered “contrary to public order” – the intended parent can appeal to adoption (a legal institution regulated by Law 184 of 1983 in Italy) in special cases in order to have the legal recognition of the relationship to the child.
Therefore, it will no longer be possible to act administratively, going to the various municipalities, to obtain the registration of birth certificates, but it will be necessary to proceed judicially, following a path that is certainly longer, more costly, and with less certainty.
More than ever, given the proposal of the centre-right Italian government to make surrogacy a universal crime (already considered a crime in Italy since 2004) and the impossibility for same-sex couples to use adoption, a male couple wishing to have a child is left with the only option of leaving Italy.
This case is significantly different than the case of the Spanish singer Miguel Bosé, whose children were born abroad through surrogacy. Despite this, Miguel Bosé’s children were recognised as his children in Spain, so when the singer and his husband divorced, Bosé won full custody of his biological children in court, with whom he now lives in Mexico. Many uncertainties await Tiziano Ferro due to legislation in which, unfortunately, the rights of LGTBIQIA+ people are once again undervalued and not equal to those of heterosexuals.
Even if Tiziano were to obtain custody of the children in the United States and bring them to Italy, he would encounter many problems in obtaining legal recognition of his role as a father in this country, especially if he is not the biological father of one or both children.
Thus, once again it becomes clear how, within the same European landscape, civil rights and protections can differ in number and intensity, even in countries that are so culturally close.