Another victory for same-sex couples: the Constitutional Court has ruled that the intentional mother is also entitled to mandatory paternity leave
It is unconstitutional to exclude the intentional mother — that is, the woman who, despite not being the biological mother, shared the parenting project with her partner — from the mandatory paternity leave provided for by law. With a landmark ruling, the Constitutional Court has established that the right, until now reserved only for biological fathers, must also be recognised for the second mother, if she appears as a parent in civil registry records. A major victory for same-sex couples — the second in just a few weeks — following the late-May ruling in which the Constitutional Court established that children of two women, born through medically assisted reproduction abroad, can henceforth be recognised by both mothers, registered in the civil registry as the children of both, and essentially have two mothers: the biological one and the intentional mother.
The Constitutional Court's ruling found unconstitutional the article contained in legislative decree 151/2001, on "the protection and support of maternity and paternity", which provides for 10 fully paid days for the father at the birth of a child, but makes no provision for the case of two mothers, both recognised as parents in Italy.
According to the constitutional judges, it is "manifestly unreasonable" to treat families with two mothers differently from those with a mother and a father, when both women have taken on a parental role towards the child, including through assisted reproduction carried out abroad in a lawful manner: in this respect, the new ruling should be read as the natural consequence of the one issued at the end of May.
The principle affirmed is clear: parenthood does not depend on sex or sexual orientation, but on a concrete and shared commitment to the care of the child. "Sexual orientation," the Court writes, "does not in itself affect the ability to assume parental responsibility." Mandatory paternity leave serves a specific purpose: to ensure time and presence during the delicate period surrounding birth, promoting a fair sharing of family responsibilities. This applies to all families, the Constitutional Court emphasises, regardless of their composition. The Constitutional Court also invoked the child's right to maintain a relationship with both parents, as provided for both by Italian law and by European and international conventions. In this sense, the ruling is a step forward in the protection of the child, who has the right to receive care and affection from those who have concretely taken on the responsibility of raising them, regardless of the gender or sexual orientation of the parents.
The victory is significant, though not quite significant enough according to Fabrizio Marrazzo, spokesperson for the Committee "Sì Matrimonio Egualitario", who describes it as "a small result" in a context still full of obstacles: "The ruling is important, but it confirms what we have been saying for some time: we need a clear law, equal for all families. Until there is one, we will keep winning rights one at a time, courtroom by courtroom." The disparities that still exist, even after these rulings, are considerable: intentional mothers are still not automatically recognised in civil registry records; unlike female couples, fathers in male couples remain invisible to the State. In short, too many families do not fit the "traditional" model and are therefore overlooked. For this reason, the Committee's proposal is unambiguous: pass equal marriage through a referendum. A digital signature collection is already open on the ministry's website.
