Mater semper certa non est. The Court of Padua rejects the Prosecutor’s appeal against the birth certificates of children with two mothers

by | Apr 3, 2024

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About Chiara Ragni

Chiara Ragni is Full Professor of International Law at the Faculty of Political Science of the University of Milan, where she teaches International Law and International Human Rights Law. Her research is focused on human rights with an emphasis on the protection of vulnerable people, like children or migrants, on international criminal law, on health-related rights, and on family law.

On 1 February 2024 the Court of Padua rejected the appeal lodged in June 2023 by the Prosecutor seeking to correct more than thirty birth certificates of children, who were conceived abroad through medically assisted reproduction (MAR) by couples consisting of two women and subsequently born in Italy. The appeal sought the rectification of the certificates through the removal of references to the non-biological parent. It was based on the alleged inconsistency of the certificates with Italian legislation, which, first, only acknowledges the biological mother and father on birth certificates (according to the interpretation of Art 30 of Presidential Decree 396/2000 governing civil registry rules) and, second, permits access to reproductive technologies solely for heterosexual couples experiencing reproductive issues due to sterility or infertility (Law 40/2004, Art 1).

The Court of Padua rejected the request, holding that it was not about correcting a certificate with errors in its formation, but rather about challenging the legal parent-child relationship between the children and their intended mothers. Consequently, the dispute should be resolved through contentious proceeding, as per Art 263 of the Italian Civil Code, and not, as in this case, through the rectification procedure, regulated by Article 95 of the Decree 396/2000.

This ruling fits into a significant body of case law concerning the parentage status of children born as a result of MAR carried out abroad, in cases where access to MAR would have been precluded under Italian legislation. In the scenario at issue in the Padua case, according to the prevailing practice, while only the parental status of the biological mother is legally recognised, the partner who consented to artificial insemination can seek adoption of the child under a limited form known as “minus plena adoption” (Law 184/1983, Art 44(1); cf. inter alia, Supreme Court – Corte di Cassazione – judgements 12962/2016 and 12193/2019). This option was generally considered a good balance between, on the one hand, the prevailing interest of the child in preserving the already existing family link with both parents and their human right to family and private life; and, on the other hand, the public interest in preventing people from resorting to “reproductive tourism”. However, despite its positive aspects, this solution does not achieve full protection of the rights of all those involved, as it is strictly contingent upon a judicial adoption proceeding (ECtHR, Advisory Opinion, 10 April 2019, 54).

Moreover, due to a lack of clear regulations, decisions regarding acknowledgment or recognition of parentage are left to civil status officers receiving registration requests or to judges in cases where the validity of birth certificates is disputed. This leads to fragmented practices, as exemplified by the current case.

The Court of Padua distanced itself from the line taken by the Supreme Court, which held in decision 7413/2022 that rectification procedures are the only means to contest the legitimacy of birth certificate data entered by civil status officers. According to the Supreme Court’s interpretation, inconsistencies may pertain to differences between the situation reflected in the birth certificate and that envisaged by the law. In cases like the present one, registering the intended mother could amount to a defect altering the formation process of the act, since she is not, under Italian law, considered a parent (in the same vein see order 511/2024).

According to the different approach taken by the Court of Padua, which more closely resembles the recent rulings of the Court of Appeal of Florence (see decision dated 6 February 2023), since the entry in the public registry not only records the child’s birth but also establishes the parent-child relationship, its annulment inevitably involves a decision on the status of the child. For this reason, the court concluded that it can only be challenged through a dispute involving all interested parties. Accordingly, the appeal brought by the Prosecutor in accordance with the rectification procedure regulated by decree 396/2000 was dismissed.

This judgment was widely embraced by the LGBTQ+ community as it preserves the validity of mentioning both mothers in the birth certificates concerned. However, its revolutionary impact cannot be overstated. In disputes concerning the status of children conceived abroad through circumvention of strict Italian regulations on MAR, the Italian Supreme Court has consistently ruled that the Italian Legislation, which is the applicable one according to private international law (Law 218/1995, Art 33), does not permit recognition of two women as mothers of the child (cf. inter alia orders 22179/2022 and 10844/2022). Nor can such a conclusion be drawn from an expansive interpretation of Law 40/2004, which, at Art 8, grants similar rights to children born through MAR as those conceived naturally. A different result may be achieved only by way of legislation of the kind the Constitutional Court has called for (judgments 32/2021,; and 33/2021, 5.9).

For the Italian version of the blog, see here.

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