8 November 2021

Registering 'two fathers' violates the Constitution

In particular, it violates Article 3 of the Charter of Fundamental Rights, which requires us to be equal before the law. The male couple would in fact be allowed to lie about the filiationis status of the child, something that is never allowed to a mother, who is always required to declare the truth about the paternity of her child. Otherwise, they would be penalised. Unacceptable
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The Court of Milan ordered the Municipality to transcribe the birth certificate with 'two fathers' in its entirety" of a child born in the United States from a rented uterus and a purchased oocyte.

Since spring 2019, the municipality had suspended the transcriptions of these birth certificates, limiting itself to the transcription of the biological father only.

A few months later a A ruling by the Court of Cassation had supported this decision, pointing the way to adoption 'in special cases' for the biological father's partner.

Subsequently Another judgment, this time by the Constitutional Court, had indicated the need for the legislature - i.e. Parliament - to find a quicker route to adoption for daughters and sons of same-sex couples, for the reason that "the infringement of the prescriptions and prohibitions laid down by Law No 40 of 2004 - attributable to adults who have had recourse to an illegal fertilising practice in Italy - cannot be attributed to those who have been born"..

However, it should be recalled that the same Constitutional Court reiterated its condemnation of the surrogacypractice that "intolerably offends the dignity of women and deeply undermines human relations"with the risk of "exploitation of the vulnerability of women in socially and economically disadvantaged situations'.

On the basis of the latest ruling of the Constitutional Court, however, the Court of Milan ordered the full transcription because, since they are minors, "their protection cannot be suspended indefinitely until the legislator changes the law".

The Municipality of Milan reserved its decision after the reading of the Court's decree.

But the recognition of 'two fathers', as well as not actually discouraging the use of surrogacy (which is punished by law only when practised in Italy) would probably violate Article 3 of the Constitution, which requires us to be equal before the law.

Let's see why, with simple reasoning.

Mary gives birth to a child and is undoubtedly his mother, having given birth to him (mater semper certa). As for paternity, if Mary is married or civilly united to a man, then that man is the father in law, unless Mary declares otherwise or her husband disclaims it. If, on the other hand, Mary is neither married nor civilly united, you will be the one to indicate to the registry -is not obliged to do so- the name of the fatherOnly Mary can know who she is -or, alternatively, a DNA test-. If Mary indicates that a man who is not her biological father is her biological father, she would be lying and committing an offence against the status filiationisIt would deprive the child of the inalienable right to know the truth about his or her origins.

Other case: Anna gives birth to a child, it is undoubtedly her mother, she does not declare her biological father but indicates Paola as her 'other mother', a woman to whom she is civilly united or with whom she has an emotional relationship. Also in this case the full transcription of the birth certificate would constitute an alteration of status. Allowing the full transcription of the birth certificate with two mothers, Anna who is actually the mother and Paola who is not, would mean saying that Mary and Anne are not equal before the law: Mary is not allowed to lie, but Anna is allowed to distort the status filiationis. If, on the other hand, Paola, Anna's partner, is adopted in special cases, we will have a mother (Anna) and an adoptive mother, Paola, and the truth about the origins will be preserved. Anna's case may, however, be complicated by the use of certain assisted fertilisation techniques: it happens in some cases that the pregnancy was carried out by Anna, but that the oocyte is Paola's, who is to all intents and purposes the child's genetic mother. It must be said, however, that in these cases the uterus is almost never rented, which - let's not forget - is a crime in Italy (Law 40).

Last case: John and Marco (civilly united or otherwise in a couple) decide to have a child (intended parents) by resorting to uterus for rent or gestation for others abroad, in one of the few countries where surrogacy is not a criminal offence - only twenty or so out of more than 200 countries worldwide - and the birth certificate is registered in its entirety in that country, indicating the two men as both fathers. The biological father will be one of the two (John or Mark), which should be clarified by DNA tests: it has also happened that some clinics have used the semen of a third party. The mother by contract is almost always removed from the process, and so is the woman who sold the eggs. to carry out the conception, almost always two different people. Full registration of the birth certificate in ItalyTherefore, in addition to the biological father - if he is the biological father - his partner, who is also recognised as the father, is a blatant alteration of the status filiationis, e denies the child the right to a transcript of the truth about his or her origins. So the couple John and Mark would enjoy a "fast track" compared to Mary, who is obliged not to lie about the child's origins, and if he wanted to give the role of father to a man who is not his biological father, he would necessarily have to resort to adoption in special cases. So Giovanni and Marco would be somehow 'rewarded'.They are relieved of the offence of altering their status and also of the offence of resorting to surrogacy, even if it is carried out abroad and therefore not punishable in Italy (a similar reasoning can be applied to heterosexual couples who resort to surrogacy).

In conclusion, thetranscribing all birth certificates of children of same-sex couples at the registry office violates Article 3 of the Constitution, which states that we are equal before the law.A different law applies to Mary than to Anna and Paula, and to John and Mark. If Maria wants to name as father a man who is not her biological father, she has to resort to adoption in special cases. In the case of full automatic transcription of the birth certificate for children of same-sex couples, there is no need to resort to adoption in special cases, these couples would enjoy a right that is not granted to Mary..

More: Anna and Paola's situation and that of Giovanni and Marco are not comparable, even though both are same-sex couples. Sexual difference exists and no law can erase it.. In the case of Anna and Paola the mother, semper certainThis certainty is known, a certainty that is lacking in the case of Giovanni and Marco. Moreover, in the case of Anna and Paola there may be a contribution to the birth by both women, the one who gave birth and the one who provided the oocyte, a situation that deserves careful consideration by the legislature, and normally no crime is committed in the conception; In the case of Giovanni and Marco, we have only one biological father, a condition that must be ascertained, and filiation has been achieved through a practice that is a severely punished offence in Italy.

The best way forward, therefore, in the case of children of same-sex couples - and in particular of two men - is adoption in special cases..

But above all, When it comes to birth, the mother cannot be 'equated' with the father and deprived of the central position that nature has given her. The law must be able to represent sexual difference.

Marina Terragni

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