Continuidad del status filiationis entre principios fundamentales y medios para garantizar su reconocimiento: desarrollos recientes en Italia

Family law in a cross border context has become increasingly complex as a result of international mobility, evolving family models, and the growing use of assisted reproductive technologies. The recognition of parentage established abroad is essential to safeguarding the child’s personal identity and preventing legal uncertainty regarding family status. The case law of both the European Court of Human Rights and the Court of Justice of the European Union highlights the need to protect the best interests of the child, although neither court consistently requires the automatic transcription of foreign birth certificates. In Italy, “adoption in particular cases” has long served as a mechanism for recognising the legal relationship between a child and an intended parent, particularly within same-sex parent families. However, in a recent judgment, the Italian Constitutional Court held that this solution is structurally inadequate where a child is born in Italy to two women following assisted reproduction carried out abroad. The case concerned the increasingly common situation of a female couple travelling abroad, specifically to Spain, in order to circumvent the prohibition imposed by Italian law on access to medically assisted reproduction for same-sex couples, and subsequently returning to Italy for the birth of the child. Following this landmark decision, although Italian law continues to prohibit access to assisted reproduction for same-sex couples, a child born as a result of such a parental project must, from birth, be legally recognised as the child of both the biological mother and the intended mother.