Recording "two fathers" in the registry violates the Constitution
In particular, it violates article 3 which requires us to be equal before the law. The male couple would in fact be allowed to lie about the status filiationis 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, she would be sanctioned. Unacceptable

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The Court of Milan ordered the Municipality to fully transcribe the birth certificate with "two fathersof a child born in the United States from a rented uterus and a purchased egg.

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

A few months later one sentence of the Court of Cassation had supported this decision, indicating the path of adoption "in particular cases" for the biological father's partner.

Subsequently another ruling, this time from the Constitutional Court, had indicated the need for the legislator - i.e. Parliament - to identify a faster path than adoption for the daughters and sons of same-sex couples, for the reason that «the violation of the provisions and prohibitions set by law no. 40 of 2004 - attributable to adults who have resorted to an illegal fertilization practice in Italy - cannot affect those born".

It should however be remembered that previously the same Constitutional Court had reiterated the condemnation of surrogate motherhood, a practice that «it offends the dignity of women in an intolerable way and profoundly undermines human relationships», with the risk of «exploitation of the vulnerability of women who find themselves in disadvantaged social and economic situations".

On the basis of the latest ruling of the Constitutional Court, however, the Court of Milan ordered the full transcription because they were minors «their protection cannot be suspended indefinitely, waiting for the legislator to change the legislation».

The Municipality of Milan reserved the right to decide after reading the Court's decree.

But the recognition of "two fathers", in addition to not actually discouraging the use of a rented uterus (which is punished by law only when practiced in Italy) would probably violate the art. 3 of the Constitution, which requires us to be equal before the law.

Let's see why, with a simple reasoning.

Mary gives birth to a child and is undoubtedly his mother, having given birth to him (mater always certain). As for paternity, if Maria is married or civilly married to a man, by law the father is that man unless otherwise declared by Maria or disavowal by her husband. If, however, Mary is neither married nor in a civil union, she will indicate it to the registry office -is not required to do so- the father's name: only Maria can know who she is - or, alternatively, a DNA test -. If Maria indicated as her biological father a man who is not, she would be committing a crime against him by lying status filiationis, that is, it 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 the biological father but indicates Paola as the "other mother", a woman with whom she is civilly married 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 Maria and Anna are not equal before the law: Maria cannot lie, but Anna is allowed to alter it status filiationis. If, however, Paola, Anna's partner, accesses adoption in particular cases, we will have a mother (Anna) and an adoptive mother, Paola, and the truth about the origins will be preserved. Anna's case can be though complicated by the use of some assisted fertilization techniques: in fact, in some cases it happens that the pregnancy was carried out by Anna, but that the egg is Paola's, who is in all respects the genetic mother of the child. However, it must be said that in these cases, a rented uterus is almost never used, which - let's remember - in Italy is a crime (law 40)

Last case: John and Mark (civil unions or in any case as a couple) decide to have a child (intentional parents) by resorting to uterus for rent or gestation for others abroad, in one of the few countries where renting a womb is not a crime - only around twenty states out of over 200 in the world - and the birth certificate is fully registered in that country, indicating the two men as both fathers. The biological father will be only one of the two (Giovanni or Marco), a fact that should be clarified with DNA tests: it has also happened that some clinics have used the semen of a third party. The contractual mother 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. The complete registration of the birth certificate in Italy, therefore in addition to the biological father - assuming he is one - his partner recognized as equally a father is also one obvious alteration of status filiationis, And denies the child the right to have the truth about their origins recorded. So the couple Giovanni and Marco would enjoy a "preferential lane" compared to Maria, who is required not to lie about the origins of the child, and if he wanted to attribute the role of father to a man who is not the biological father he would necessarily have to resort to adoption in particular cases. So Giovanni and Marco would be "rewarded" in some way, being relieved at the same time from the crime of alteration of status, and also from the crime of resorting to a rented uterus, even if carried out abroad and therefore not punishable in Italy (a similar reasoning can be carried out in the case of heterosexual couples who resort to surrogacy).

In conclusion, la full transcription at the registry office of birth certificates of children of same-sex couples violates art. 3 of the Constitution which intends us to be equal before the law: a different law applies to Mary than that which applies to Anna and Paola, and to John and Mark. If Maria wants to indicate as her father a man who is not her biological father, she must resort to adoption in particular cases. In the case of automatic full transcription of the birth certificate for children of same-sex couples, without having to resort to adoption in particular cases, these couples would enjoy a right that Mary is not granted.

Moreover: the situations of Anna and Paola and that of Giovanni and Marco are not comparable, although in both cases they are same-sex couples. Sexual difference exists, and no law can erase it. In the case of Anna and Paola the mother, always certain, it is known, a certainty that is missing in the case of John and Mark. Furthermore, 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 made the oocyte available, a situation which deserves careful consideration by the legislator, and normally not no crime is committed in the conception; in the case of Giovanni and Marco we only have one biological father, a condition that must be ascertained, and the filiation was achieved through a practice which in Italy is a severely punished crime.

The main path, therefore, in the case of children of same-sex couples - and in particular of two men - remains adoption in particular cases.

But most of all, when it comes to birth, the mother cannot be "equalized" to the father and deported from the central position that nature has given her. The law must be able to represent sexual difference.

Marina Terragni


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