Italy / Constitutional Court / Decision No. 115/2025
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Italy / Constitutional Court / Decision No. 115/2025
Key facts of the case:
The CSO Rete Lenford, in partnership with the trade union CGIL, filed a judicial complaint concerning Art. 27-bis of the Legislative Decree No. 151/2001, as reformed in 2022 to implement the Directive 2019/1158/EU. This clause does not recognise compulsory parental leave for female workers when they are the equivalent second parent in a couple of two women who are registered as parents in the civil registry. The appellants had complained about the discriminatory conduct of the National Social Security Institute (INPS) in adopting an IT procedure that did not allow same-sex couples, recognised in the civil registry, to submit an online application on the Institute's web portal to enjoy parental leave, rest periods and allowances provided for by Legislative Decree No. 151/2001. In December 2024, their case was referred by the Brescia Court of Appeals to the Constitutional Court for an assessment the constitutional legitimacy of the challenged article.
Key legal question raised by the court:
The issue raised by the Court of Appeals of Brescia concerned the possibility to consider the provision in question as discriminatory, as it only allows fathers to take compulsory paternity leave, equal to 10 days of leave from work paid at 100%, thus excluding thereby excluding the intentional mother of lesbian couples from the benefit in cases where the couple are two women who are both recognised as mothers by the Italian State as they are registered in the civil registry.
Outcome of the case:
The Constitutional Court considered the unequal treatment between parental couples composed of persons of different sexes and couples composed of two women recognised as parents of a child born legitimately through medically assisted procreation techniques carried out abroad in accordance with legislation in force in the country where they were conducted, to be manifestly unreasonable. The Court observed that, in fact, by sharing parenting, the applicants had assumed, like a heterosexual couple, the legal responsibility to provide for the needs of the child, which the legal system considers inseparably linked to the exercise of parental responsibility. With regard, in particular, to the welfare provision in question, the Court notes that it is important to devote adequate time to the child’s care , including by adjusting the time allocated to work, in line with the aim of promoting the exercise of parental duties through better organisation of family needs, in a process of progressive enhancement of the functional aspect of parenthood, which is identical in families formed by homosexual and heterosexual couples. According to the Court, it is possible to identify in lesbian couples a figure comparable to that of the father figure within heterosexual couples, distinguishing between the biological mother and the intentional mother, who has shared the commitment to care for and responsibility towards the newborn and actively participates in it. For these reasons, the challenged disposition is unconstitutional as it violates the principle of equality (Article 3 of the Italian Constitution).
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Paragraphs referring to EU Charter
7.3 …In this context, sexual orientation does not in itself affect suitability for assuming parental responsibility (Decision No. 33 of 2021 of the Italian Constitutional Court). The interest of the child is to be recognised as the child of both parents – the biological mother and the intentional mother – who have assumed and shared parental responsibility through the use of medically assisted procreation techniques practised legitimately abroad. This Court has held that, where a couple became parents, the recognition of the relationship with the biological mother alone would not be sufficient, as the child has the right to maintain a relationship with both parents (Decisions No. 68 of 2025 and No. 102 of 2020 of the Italian Constitutional Court), a right recognised in ordinary legislation (Article 315-bis, first and second paragraphs, and 337-ter, first paragraph, of the Civil Code) as well as in a series of international and European Union instruments (Article 8, paragraph 1, of the UN Convention on the Rights of the Child, approved by the United Nations General Assembly on 20 November 1989, ratified and implemented by Law No. 176 of 27 May 1991, and Article 24, paragraph 3, of the Charter of Fundamental Rights of the European Union).
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Paragraphs referring to EU Charter (original language)
7.3 […] In siffatto quadro, l’orientamento sessuale non incide di per sé sulla idoneità all’assunzione di tale responsabilità (sentenza n. 33 del 2021). L’interesse del minore consiste nel vedersi riconoscere lo stato di figlio di entrambe le figure – la madre biologica e quella intenzionale ‒ che abbiano assunto e condiviso l’impegno genitoriale attraverso il ricorso a tecniche di procreazione medicalmente assistita praticate legittimamente all’estero. Infatti, questa Corte ha affermato che, qualora una coppia di persone abbia intrapreso il percorso genitoriale, non è sufficiente il solo riconoscimento del rapporto con la madre biologica, sussistendo il diritto del minore a mantenere un rapporto con entrambi i genitori (sentenze n. 68 del 2025 e n. 102 del 2020), diritto riconosciuto a livello di legislazione ordinaria (art. 315-bis, primo e secondo comma, e 337-ter, primo comma, cod. civ.) nonché da una serie di strumenti internazionali e dell’Unione europea (art. 8, comma 1, della Convenzione ONU sui diritti del fanciullo approvata dall’Assemblea generale delle Nazioni Unite il 20 novembre 1989, ratificata e resa esecutiva con legge 27 maggio 1991, n. 176 nonché art. 24, paragrafo 3, della Carta dei diritti fondamentali dell’Unione europea).