Recognition of same-sex parents in Italy - a right to have a child?

Reviewing the literature on partnership and parenthood shows that marriage, biological complementarity and procreation within this institution may still play central roles as the basis of the family. As new natural law philosophers (Finnis 1997, Lee – George, 2014) argue, conjugal marriage can only be understood as a union between a woman and a man, including the procreative sexual acts between spouses. Other scholars however critique the heteronormative understanding (Warner, 1993) of marriage and procreation-oriented family based on gender relations and the hierarchy of sexualities (D’Emilio 1993, Butler 1999, 2004, Nussbaum 2010, Brake 2012, Macedo 2015, Chambers 2017). Over the last decades in Europe, legal developments lead to changes in how marriage and marriage-based kinship are understood. For example, in most cases marriage equality also brought recognition of legal parenthood of same-sex couples varying through second-parent or joint adoption, IVF and in some cases automatic recognition of the second partner. But is there a right to have a child? The paper explores how the Italian judiciary answered this question. With Law No.76/2016 („Cirinnà Law”), the legal recognition of same-sex couples is guaranteed through the institution of civil union (“unione civile”), however the recognition of parenthood for these couples is missing as diverse parliamentary debates led to the removal of “stepchild adoption” clause from said law. Nevertheless, several court cases tackled the question. The paper identifies relevant Italian court decisions to further analyze how family is understood in relation to same-sex couples. Following the gender binary division and the biological compatibility approach present in these court cases (Saccomandi 2020), the paper focuses separately on decisions related to female and male same-sex couples. The latest Constitutional Court cases (Sentenza 32/2021 and 33/2021) further confirm this division and the different approaches used by courts to balance competing human rights. Even though Italian courts seem to aim at overcoming legislative inertia, the analysis shows that biological bonds may be more relevant than marital status in the outcome of decisions. For this reason, recognition of legal parenthood of female same-sex couples relying on IVF is more straightforward. Since surrogacy is illegal in Italy, all court cases are reaffirming this ban. The conclusion from the analysis is as follows: all courts prioritize the best interest of the child, and not the desire to become a parent. This means providing protection to a child by highlighting the importance of legal bonds between parents and child but only within the limits of Italian law. As legal recognition of partnership and parenthood of same-sex couples is becoming an increasingly relevant issue, European and national court decisions are crucial not only for LGTBQIA+ activism but also for further understanding how the family as an institution is constructed and understood in legal sociology.