LUCCA. Suspension of the proceedings and transmission of the documents to the Council due to the “not manifest unfoundedness of the question of constitutional legitimacy”. The civil court, presided over by Gerardo Boragine (on the side Alice Croci And Maria Giulia D’Ettore), with a 40-page order, involves the Constitutional Court so that the delicate issue of homoparenting is adequately regulated by the legislator. From 2019 to today, despite other courts (for example that of Padua) having raised similar questions, the legislator has not yet ruled. The Court’s indications will be fundamental to avoid divergences and variable behaviors of municipalities, which approach the issue differently, creating disparities in treatment between citizens depending on their place of residence.
The case
The story concerns a couple of lawyers from Versilia, represented by the lawyer Vincenzo Miri Of Florence, who in the summer of 2023 had appealed to the court against the cancellation of the non-biological mother’s name from the birth certificate of their second child, born abroad through artificial insemination. The couple’s lawyer had asked the College to outline a path that could resolve the legal uncertainties that affect the lives of the people involved, especially that of the two mothers.
The parties to the trial
Opposition to the appeal, justifying the legitimacy of their actions and supporting the annulment of the deed, came from the Ministry of the Interior, the Municipality of Camaiore (where the deed was registered) and the Public Prosecutor’s Office. However, the prosecutor Domenico Manzionealigning itself with the jurisprudence of the Supreme Court of Cassation in United Sections, requested to annul the act due to a clear violation of a principle of equality, raising a question of constitutional legitimacy and requesting the suspension of the trial. The judiciary cannot replace the legislator. A regulatory framework is needed that privileges the interest of the minor, as established by the International Court for the Protection of the Rights of the Child.
The court verdict
In this specific case, the cancellation of the name of one of the couple’s two children from the civil registry, which would have resulted in the presence of only one biological mother, would have led to an inequality in the treatment of rights (for example, those relating to inheritance). Since the interest of the minor must prevail, the Panel held that the question of constitutional legitimacy is not manifestly unfounded with reference to Articles 2, 3, 30, 31 and 117, first paragraph, of the Constitution and Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as they prevent the registration of the child as the child of both mothers and require the annulment of the act of recognition performed by the non-biological mother.
The Court’s warning
Already in 2021, the Consulta had underlined several times that «the urgent need to protect the main interest of the minor, in line with the jurisprudence of the European Courts, presupposes a revision of the current regulatory framework due to the gap between the factual reality and the legal and a dystonia in the minor’s relationship with his non-biological mother, given the importance of legal recognition of existing emotional and family ties, even if they are not biological, for the minor’s identity”.
