Lucca, 26 June 2024 – Is it lawful, indeed is it constitutional, to cancel the birth certificate of a son or daughter of a same-parent couple had with PMA? Is it lawful, is it constitutional not to recognize the boy or girl as the intended parent? These are the questions that the court of Luccaand which circulates to the Consulta, starting from a specific case and which thus becomes emblematic.
At the center is the birth certificate of a child born through medically assisted procreation (obviously done abroad because in Italy it can only be done by a couple of different sexes and in certain cases, such as: infertility or absolute or irreversible sterility or in the presence of serious communicable diseases), son of a couple of women resident in Versilia. The Lucca municipality involved in the affair took steps to register the small con double surnameof both parents, not considering this to be in conflict “with public order and current regulations” but rather deeming this action “in accordance with the primary interest of the minor”.
The Prosecutor’s Office challenged this act, requesting its rectification and hoping that the matter would be referred to the Council. This is what the Lucca court did, starting (in a nutshell) from some objective data: first of all, the couple in question has another child, slightly larger, also obtained through pma, for which the rectification of the birth certificate was not requested (therefore in the event of cancellation of the second, unequal treatment between siblings would be created); secondly, it is true that the biological mother is the one who carried out the pregnancy, but the intended mother gave consent to the fertilization practice and the bond with the minor is already in place, exists and cannot be ignored; lastly (not least) the law is not clear.
Regulatory gaps
The court of Lucca, in fact, points out in the order how “the regulatory gaps” regarding “full dual parenthood” by two women on a child born with PMA, leave room for discretion of individual municipalities and therefore of individual mayors. This means that in some cases, in some cities the intended mother is recognized and in others it is not. So “non-uniform outcomes” – comments on the 40-page ordinance – which “give an account of an evolution of the social fabric which, in the continuing legislative inertia, has not been fully responded to”.
In essence, Italian law does not keep pace with changes in society, thus leaving some issues uncovered. Hence the choice to raise a question of constitutionality, remaining faithful also to the “warning of the Constitutional Court” which in January 2021 had invited Parliament to intervene on the issue deeming “the continuation of legislative inertia no longer tolerable”. The Lucca judges – as the Padua court also did in 2019, starting from a similar situation – therefore suspended the judgment on the appeal of the Prosecutor’s Office and sent the documents to the Constitutional Court for a ruling on the legitimacy of articles 8 and 9 of law 40/2004 and article 250 of the civil code where they “prevent the attribution of the status of child to the born child even to the intended mother” and not only to the biological one; where “it attributes to the mother and father to recognize the child, to the extent that they prevent the child born with medically assisted procreation from being attributed the status of child”.
The rights of the intended mother and the protection of the minor are at stake.
