Il riconoscimento in Italia dell’adozione del figlio della partner del medesimo sesso alla luce della recente prassi delle corti italiane

Large-scale differences among national legal systems in the field of family law may have as its main effect the fact that a status, though validly acquired abroad under the rules of one state, cannot be recognized as valid in another, because of the public policy exception or of characterization problems; this result is not only undesirable, but it can also amount to a violation of human rights. The refusal to give effect to the foreign adoption of a child by the same-sex married partner of her mother, due to the obstacles which oppose to the circulation of same-sex marriages in countries like Italy, where only heterosexual relationships are legally recognized, may therefore jeopardize the best interest of the child to have her family ties and her identity safeguarded. By an order issued by the Youth Court of Bologna, the Italian Constitutional Court was asked to decide whether the impossibility to take into account the best interest of the child, when pronouncing on the recognition of a decision regarding her status, may amount to a violation of Italian Constitution. Starting from the order, the author suggests to take a different approach as regards the identification of the relevant norms regarding the recognition in Italy of adoptions performed abroad; the proposed reasoning leads to the conclusion that, according to a human rights and constitutional oriented interpretation of Italian rules, the recognition of the legal parentage deriving from a second same-sex parent adoption should be allowed in the case where this result is consistent with the best interest of the child.