The role of the law 40 in cases of recognition and what happens abroad
Where does the legal problem of recognizing children with same-sex parents come from?
From law 40 on medically assisted procreation, which prohibits artificial insemination for same-sex parents. This is why same-parent couples resort to these techniques abroad. The problem is transferred to the children upon returning to Italy.
2 What happens if the child is born of two fathers and a "donor"?
According to law 40, gestation for others is a crime, in which a woman gives birth to the baby on behalf of a gay or heterosexual couple.
3 And in the case of two mothers and a "donor"?
It is a crime if the mothers both participated in the pregnancy: one in the conception with her own oocyte, the other in the gestation. If, on the other hand, the uterus and oocyte belong to the same woman, the other cannot be considered a parent. The United Sections of the Court of Cassation have in fact established that sexual orientation is not relevant but the path taken to have the child. The "intentional" parent, who has no biological link with the baby, cannot be recognized as such in Italy.
4 Doesn't the «intentional» parent have the right to be treated like the others?
No. There is no parental right in this regard.
5 Can a child conceived abroad with these techniques not be recognised?
Yes. According to the law, the non-biological parent must request a special adoption, the step child adoption. It is open to everyone, heterosexual or otherwise. However, same-parent couples complain that time is needed and the outcome is uncertain: if there is a conflict pending the sentence, the non-biological parent can be kicked out.
6 Can a child with two biological mothers be registered in the registry office?
It is necessary to distinguish where he was born. If abroad - in countries where it is allowed (such as France, Spain, Austria) - for the Cassation it can be immediately registered in the registry office and both women will be considered mothers. But on this the interior ministry has asked for an opinion from the state attorney's office. If the child is born in Italy, however, according to the Cassation, the mother who participated with the oocyte cannot be recognized as a parent.
7 Has the Council indicated a way forward?
No. You have signaled to Parliament that there is a regulatory gap that needs to be filled.
March 16, 2023 (change March 16, 2023 | 07:12)
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