May 22, 2025, marks a historic turning point for the rights of same-sex families in Italy. With ruling no. 68, the Constitutional Court declared the non-recognition of the intentional mother at birth unconstitutional in cases of Medically Assisted Procreation (MAP) performed abroad by lesbian couples. This decision is a significant step toward equality and the protection of minors born into same-sex families.
Legal Background: Law 40/2004 and Its Shortcomings
Italian law no. 40 of February 19, 2004, regulates medically assisted reproduction in Italy. Article 5 limits access to MAP to heterosexual couples, effectively excluding same-sex couples and single women. Article 8 states that the child born from MAP is the child of the couple who consented to the technique but does not explicitly mention same-sex couples.
These limitations have led many lesbian couples in Italy to seek MAP abroad, in countries with more inclusive legislation. However, upon returning to Italy, only the biological mother is legally recognised, while the intentional mother must undergo lengthy and complex adoption procedures to be legally acknowledged.
Constitutional Court Ruling No. 68/2025
The Constitutional Court, in ruling no. 68 dated May 22, 2025, declared article 8 of Law 40/2004 unconstitutional for failing to recognise the intentional mother at birth in cases of MAP carried out abroad by lesbian couples. The Court ruled that this omission violates Articles 2, 3, and 30 of the Italian Constitution, which protect the inviolable rights of individuals, the principle of equality, and the rights and duties of parents toward their children.
The decision stemmed from a case brought by the Court of Lucca, concerning a child born in Italy to a lesbian couple who underwent MAP abroad. The Court acknowledged that denying recognition to the intentional mother harms the child’s right to personal identity and undermines their right to a stable and continuous relationship with both parental figures.
Practical Implications of the Ruling
Following this ruling, children born in Italy to lesbian couples who underwent MAP abroad can now be registered at birth as having two mothers, without the need for special adoption procedures. This immediate recognition ensures full and uniform legal protection for the child, eliminating discrimination and legal uncertainties.
It is important to note that the ruling does not change the access criteria to MAP in Italy, which remains limited to heterosexual couples. However, the Court emphasised that it is up to the legislature to decide whether to extend access to other family structures.
Reactions and Future Perspectives
The ruling has been widely welcomed by LGBTQIA+ rights organisations and same-sex families who have long fought for legal recognition. Rete Lenford, the association that supported the couple involved in the case, called the decision a fundamental step toward equality and child protection.
However, the ruling also highlights the need for broader legislative action to address existing legal gaps and ensure full equality for all families, regardless of their composition. The Court itself urged Parliament to legislate on the matter, stressing the urgency of reform that reflects contemporary social and family realities.
Ruling no. 68/2025 by the Constitutional Court is a major victory for same-sex families and the rights of minors in Italy. By recognising the right to dual maternity at birth, the Court affirmed that the best interests of the child must prevail over restrictive interpretations of the law. It is now up to lawmakers to update current legislation to ensure full and effective equality for all families.