The Supreme Court of Cassation, with judgment number 9006 of March 31, 2021, has established in Supreme Court that it is possible to transcribe in Italy the adoption of a child that took place abroad by a homosexual couple, even though in Italy homosexual couples are not granted the right to adopt.
According to the Court, such transcription, and thus the recognition of the effects of a foreign judicial decision on the adoption of a minor by a homosexual couple (male, in this specific case), does not conflict with the principles of international public order.
The reason that allowed for the transcription was that the adoption, carried out abroad, was not subsequent to a surrogacy ,but to a full adoption of a foreign minor.
How the Judgment Was Reached?
A couple of men adopted a minor, with the judgment of a U.S. Court, with the prior consent of the biological parents.
One of the parents is an Italian citizen, but naturalized in the United States, the country in which both reside permanently.
The parents requested the transcription of the U.S. adoption decision in the Italian civil status registers but were met with refusal by the responsible officer.
The reason for the refusal was that being an international adoption, it would have been up to the Juvenile Court to decide on the matter.
The case was then submitted by the parent to the Court of Appeal of Milan, which, recognizing its competence, excluded the application of the procedure on international adoption and ordered the transcription of the act in the civil status registers, as it was compatible with the principles of international public order.
A new denial was opposed by the mayor of the concerned municipality, who appealed to the Cassation against the decision of the Court of Appeal.
The section of the Court, deeming the issue of utmost importance, referred the decision to the Supreme Court.
Thus, the judgment of the Court of Cassation was reached, which put an end to the matter, imposing the transcription on the Municipality and confirming the validity of the decision of the Court of Appeal of Milan.
The Reasons of the Cassation
The Cassation clearly stated that an adoption carried out abroad by a homosexual couple, in situations similar to the one treated, can be recognized (and transcribed) in Italy.
Since the matter of adoptions for homosexual couples does not find particular favor in Italian law, which prohibits them with rare exceptions, the outcome of a request for transcription cannot always be the same: such possibility depends on the specific situation, but also on the nationality and habitual residence of the adopting couple.
A similar ruling could not have been considered in the case of a homosexual couple residing in Italy or of Italian citizenship (both), a situation configured as international adoption.
In this case, it was assumed that it was not a case of international adoption, since it involved only one Italian citizen who, moreover, lived permanently abroad, for which the applicable legislation was that on the recognition of foreign judgments (law n. 218/1995) and not that related to international adoption.
Having made these premises, the Court of Cassation had to assess the effects that the act would have produced in the Italian legal system, so as to evaluate the possible contrariety to the public order of the decision.
The judges based their decision on the principle of the child's best interest, which corresponded to the preservation of the "status of filiationis", acquired in the United States through a valid and effective judicial decision; denying the transcription would have caused harm to the minor.
The Court of Cassation wanted to give continuity to the position already adopted in two other judgments, according to which:
- "Sexual orientation does not affect an individual's suitability for taking on parental responsibility" (Cassation, n. 14007/2018);
- Even in family disputes concerning the custody of minors "the sexual orientation of the parent should be considered as irrelevant" (Cassation, n.601/2013).
The Implications of the Judgment
The judgment reaffirmed the principle of equality for minors, regardless of their parents' sexual orientation.
For the judges of legitimacy, the marital union between two heterosexual people remains the "model of family relationship that the Italian legal system most protects in terms of parenthood", but there are other family models equally adequate and worthy of protection.
This reasoning has opened the possibility for homosexual couples who have adopted a child abroad to see their status as parents recognized also in Italy.
A rather limited case law, as already specified, because the impossibility for Italian homosexual couples to resort to legitimizing adoption remains denied by law.
The Rights of Homosexual Couples
Since 2016 (law n. 76/2016) homosexual couples can enter into a civil union but, to date, they are not allowed to marry or even access adoption, which is only available to heterosexual couples united in marriage.
The only exceptions to the prohibition are:
- Adoption of the biological child of the partner (stepchild adoption or "adoption of the stepchild");
- Recognition in Italy of the international adoption already occurred by only one member of the couple;
- Adoption by singles in exceptional cases.
What are the rules for adoption?
Regarding the existing regulatory context on adoption, Law No. 184 of 1983 reserves the right of legitimizing adoption only to married heterosexual couples.
Homosexual couples in Italy still cannot jointly adopt a child, in Italy or abroad, as a couple.
How does Stepchild Adoption work in Italy?
The term stepchild adoption – in Italian "adozione del figliastro" – refers to a particular institution through which, within a couple, the partner has the possibility to adopt the minor child, natural or adopted, of their own companion.
The "adoption in special cases" is regulated by Art. 44 of Law No. 184 of 1983 and is also extended to homosexual couples united in civil unions thanks to a broad interpretation of the jurisprudence.
The couple must, of course, demonstrate to have a stable cohabitation and a suitable family environment.
"The marital union is the model of family relationship that the Italian legal system most protects from the perspective of parenthood, but it no longer constitutes the only model to be considered adequate for the birth and upbringing of minor children." (Cass. Sent. 9006/21)
For information or assistance, contact our lawyers of the Family and Divorce Department.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
