With a 2019 ruling, the Constitutional Court "reaffirmed the principle that 'at present' in our legal system it is 'excluded that parents of a child can be two persons of the same sex'". It is based on this jurisprudence and on other verdicts of the Supreme Court the complaint of the Milan Public Prosecutor's Office to the Court of Appeal against the decrees of the Civil Court which, six days ago, in fact considered valid the transcripts of the recognitions of the children of three couples of women, born with assisted procreation carried out abroad.
The eighth civil section on June 23 had established, with regard to a couple of men, that surrogacy is prohibited in the legal system and that for this reason the transcription in Italy of the foreign birth certificate, which also shows the name of the "intentional" parent in addition to the "biological" one, must be canceled. While it had decided that the recognitions at the registry office of the children of couples of women, born with assisted procreation, remain valid, they cannot be canceled by the judges, but rather through a procedure reserved for a few legitimated subjects, including the Public Prosecutor's Office. Now the prosecutor Rossana Guareschi, with the supervision of the deputy Letizia Mannella and the prosecutor Marcello Viola who signed the act, has formulated the appeal on the cases of the three rainbow couples, insisting that the judges "rectify" those acts of recognition of minors, in the parts in which, in addition to the biological mother, the "intentional" one is also indicated.
In the three decrees, the judges of first instance had clarified that the registry office of the Municipality of Milan could "refuse to accept a declaration of recognition of the child, but once the declaration has been accepted, even if by complacency, by mistake or in violation of the law, and has been noted at the bottom of the birth certificate of the minor, The recognition made cannot be contested". For the Court, only a special procedure can be used to annul them, namely "the model of protection that our legal system provides for the removal of the status of child". The Public Prosecutor's Office, however, in a three-page act refers to the "univocal principles dictated, starting from 2019, by constitutional jurisprudence and legitimacy". The Supreme Court, for example, with a verdict of 2020 "reiterated" that the "name of the intended mother next to that of the biological mother" cannot be included in the birth certificate "of a minor born in Italy", although the first had previously given its consent to the practice of medically assisted procreation performed abroad, since in the Italian legal system there is, for persons of the same sex, the prohibition of the use of this reproductive technique".
And the Consulta "excluded the existence of a right to parenthood of same-sex couples." And again the Supreme Court in 2022: "the act of civil status, which also indicates the intended mother, is different from the situation as it is according to the provisions of the rules in force". Among other things, the prosecutors also cite a recent sentence of the Milan Court of Appeal in which it is noted, however, that "the current legislation" on the children of same-sex couples "presents gaps in protection that would require timely interventions in the interest of minors". There will be, therefore, a second degree with the lawyers of the couples ready to give battle, after the exultation for the verdicts of the Court. "The parenthood of a minor, according to the principles of our legal system, cannot be erased with a sponge," said lawyer Michele Giarratano. While it is likely that the two men, who have had the transcription of their son's birth certificate annulled, will not appeal, but will choose the path of "adoption in special cases".