Italy backs same-sex parenthood, but European court won’t call it a right

(CN) — Italy’s long legal fight over same-sex parenthood landed before Europe’s human rights court this week — and Rome came out on top.

The case began in 2018, when two Italian women had a child through IVF treatment in Spain — a process where an egg is fertilized outside the body and then implanted into the uterus. The baby was born in Italy, where the couple lived. After the birth, a local mayor registered both women as mothers, quietly defying Italian law, which at the time recognized only the biological parent.

That recognition was short-lived. Prosecutors challenged the registration, and courts sided with them, striking the nonbiological mother from the child’s birth certificate.

The couple brought their case to the European Court of Human Rights in Strasbourg, France, arguing that Italy had interfered with their family life and failed to protect the child’s best interests. But on Thursday, the judges said Italy hadn’t violated the child’s rights.

They noted that adoption had already offered a legal path for recognition, even if it could be slower and more burdensome than a birth certificate. The child’s family life, the court said, “was not interrupted” by the Italian government.

This decision landed just months after Italy’s own Constitutional Court took a sharply different stance. In May, the Rome-based court struck down the rule that blocked nonbiological mothers from being listed, calling it unconstitutional to deny recognition to a woman who had agreed in advance to her partner’s pregnancy.

In a major ruling, the Constitutional Court said children born through fertility treatment must be legally tied to both women who chose to bring them into the world. Limiting parenthood to biology, the judges found, violated fundamental rights like equality, family life and a child’s right to identity.

That decision was celebrated by LGBTQ+ advocates as a milestone. Rainbow Families, a leading same-sex parents’ group, said “boys and girls have the right to see both parents recognized, from birth, even when they are two mothers.” But conservative groups pushed back, calling the ruling “an existential joke” and warning it undermines traditional values.

Italy’s legal and political battles over same-sex parenthood have simmered for years. Some local officials tried to register both mothers, but were often overruled by prosecutors and judges applying a 2004 law that limited fertility treatment to heterosexual couples. Under Prime Minister Giorgia Meloni, the government doubled down on those restrictions. In 2023, the interior ministry even ordered registrars to stop listing nonbiological mothers entirely, though that policy was overturned two years later.

Thursday’s European ruling, however, took a narrower view. While most judges backed Italy’s handling of the case, one dissenter — Judge Anna Adamska-Gallant — argued that the five-year delay and legal erasure caused real harm. She said the government had failed to act quickly to protect the family’s rights.

“The conclusion reached by the court is consistent with its past rulings — states must recognize parental links, but it’s up to them how,” said Dr. Dafni Lima, assistant professor at Durham Law School.

She noted that in this case, the only option was a special form of adoption with limited rights, raising “important questions about the level of protection afforded to same-sex couples compared to opposite-sex couples.” She also pointed out that the court left open what would happen if the intended parent refused to adopt — leaving the child with no legal fallback.

Other legal scholars raised similar concerns. Costanza Nardocci and Marilisa D’Amico, professors of constitutional law at the University of Milan, said the judgment “sits uneasily with Italy’s latest Constitutional Court decision.”

They argued the ECHR gave too much deference to the government’s discretion, overlooking recent domestic case law and the child’s best interests. “The court did not adequately safeguard the child’s right to identity,” they wrote, warning that the ruling’s silence on these issues could undermine protection for future families in similar situations.

The split between the European and Italian courts underscores a deeper tension: one focused on legal procedure, the other on the lived realities of same-sex families. It’s a gap that leaves many in limbo, even as laws on both fronts continue to evolve.

In comments to Courthouse News, the couple’s lawyer, Maurizio Paniz, said the ruling “severely undermines” the applicants’ interests, noting that adoption in Italy still doesn’t provide the same rights as full legal parenthood. He added that the judges ignored a recent Constitutional Court decision striking down the very rule at issue — a failure, he said, that undermines the child’s right to family life and identity.

The Italian government did not respond to a request for comment.

For now, the European court’s ruling stands unless one side seeks a referral to the Grand Chamber within three months. But in Italy, the Constitutional Court has the final say — and its decision remains binding no matter what happens in Strasbourg.

Courthouse News reporter Eunseo Hong is based in the Netherlands.