The ECtHR rejects appeals to immediately recognize the children of gay couples: “Surrogate, Italy decides” – Corriere.it

There European Court of Human Rights (ECDU) he declared inadmissible the appeals presented by several Italian same-sex couples who asked for the recognition of the birth certificates of their children bearing two mothers or two fathers. The rejections, in three different ordinances on similar cases, concern both children born abroad to gay couples thanks to surrogacy, and children born in Italy to lesbian couples, who have resorted to heterologous fertilization abroad.

– What the appeals asked for

The Italian couples had asked the registrars of their cities to register their children at the registry office with the names of both parents. Faced with their refusal, they turned to the ECHR, the Court which guarantees the protection of fundamental human rights at a European level, arguing that the refusal of recognition violated two articles of the European Convention on Human Rights, article 8, which guarantees the right to respect for one’s private and family life, and article 14, which sanctions the prohibition of discrimination.

– What the ECtHR said

The European Court of Human Rights has reiterated some firm points:

1. The need to recognize the link between children and the intended parent, the one who decided to have them born together with the biological parent giving one’s consent to surrogate motherhood or heterologous fertilisation. The Court underlines first of all that the best interests of the child include, inter alia, the identification in the law of the persons who have the responsibility for his upbringing, maintenance and well-being, and the possibility of living and developing in a stable environment – ​​write the judges of the ECtHR in their decision -. For this reason, respect for the child’s private life requires that domestic law offer the possibility of recognizing a parent-child relationship between the child and the intended parent. Consequently, the States’ margin of appreciation is limited as regards the very principle of the establishment or recognition of parentage.

2. The fact that individual states have a margin of appreciation in deciding the forms in which to recognize the parent-child relationship between the minor and the intended parent. Having Italy in recent years started allowing the intended parent to resort to adoption in special casesmeans that the desire to have a bond between children and intended parents recognized no longer collides with a general and absolute impossibility. Resorting to adoption in particular cases, the judges write, is part of the wide margin of appreciation available to it (each single European state) with regard to the implementation of the means of ascertaining or recognizing parentage.

– What did the ECtHR decide

The European Court of Human Rights has decided to reject the appeals as inadmissible, without going into the matter and postponing the decision on the form of recognition to Italy.

– What the Italian law says

In Italy there is no specific law which prohibits or allows the recognition of children of same-sex couples. There are the recognitions made at the administrative level by some mayors and a series of sentences, in which the judges have established how to use the existing laws to protect the children of same-sex couples. The United Sections Court of Cassation has ruled that children born with surrogate motherhood can have their relationship with the intended parent recognized thanks to adoption in special cases.

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Roccella: sanatorium for children. According to the Strasbourg court, the relationship of the children with the biological parent’s partner could have been fully guaranteed by the Italian rules on adoption, and it is the couples’ responsibility for not having resorted to them, commented the Minister for Family, Natality and Equal Opportunities Eugenia Rockella. However I think we will have to think about some sort of amnesty. Once there is the new law for the prosecution of rented wombs even to those who do it abroad, given that it is forbidden in Italy, an amnesty will be useful that offers a legal solution for children born so far, he added, using the derogatory term for surrogacy.

– The problem of adoption in particular cases

In 2021 the Constitutional Court intervened on adoption in particular cases. And he established that in the absence of anything else, adoption in particular cases is better than nothing, but it still violates children’s rights, because it doesn’t fully protect them or in a timely manner. And for this he asked the legislator – that is, the government and parliament – to approve a law that allows the immediate recognition of the children of same-sex couples, in particular of two mothers. While recalling the conclusions of the jurisprudence of legitimacy, which, in order to avoid a vulnerability, considered the so-called non-legitimizing adoption applicable on the basis of an extensive interpretation of art. 44, paragraph 1, letter d), of law no. 184 of 1983, in favor of the same-sex partner of the biological parent of the minor, this Court – the constitutional judges recall in its sentence 32/2021 – announced the urgency of a “different protection of the best interests of the minor, in the direction of more penetrating and extensive juridical contents of his relationship with the “intentional mother”, which attenuates the gap between factual reality and legal reality”, invoking the intervention of the legislator.

– What does the decision of the ECtHR mean in the light of the call of the Consulta

From a legal point of view, nothing changes. The ECHR, in referring to the national authorities the task of regulating the methods of recognition of the children of gay and lesbian couples, underlines the right of children to be recognized as children of both fathers or both mothers. At the moment the only tool available in Italy at national level is the adoption in special cases. But the highest national authority on fundamental rights, the Constitutional Court, already ruled two years ago, saying that adoption in particular cases has limits that create a vacuum of protection for the children of same-sex couples. And that therefore we need a law that protects them by guaranteeing them two parents immediately like all the other children.

– Because the cases of appeals to the ECHR are different from those of Padua

The appeals to the ECtHR concerned children who had never seen their relationship with their second mother (or second father) recognized. The 33 children of Padua, apparently all children of lesbian couples, have already been recognized as children of both mothers, in some cases even for six years. And now the prosecutor is asking to cancel those awards, taking away a mother from them.

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