Medically Assisted Procreation and Same-Sex Couples: The Italian Corte di Cassazione Stands its Ground

This contribution examines a recent ruling of the Italian Corte di Cassazione, concerning the recognition of parentage resulting from medically assisted procreation (“map”) techniques performed abroad by female same-sex couples. In cases where the birth of the child occurs in Italy, the Italian birth certificate usually contains the indication of the woman who gave birth, but does not mention the intentional mother, even when the latter has a biological relationship with the child. The Corte di Cassazione has confirmed its consolidated position in denying the amendment of the birth certificate, on the basis of a rigorous interpretation of the limits provided by the Law No. 40/2004. The Italian law prohibits the access of map techniques by same-sex couples, because their condition cannot be equated to a pathological infertility. The ruling under review overlooks the human rights implications possibly deriving from the recognition of intentional motherhood: in rejecting the allegations concerning the infringment of the fundamental rights enshrined by the European Convention on Human Rights (“echr”), the court has stated that the gaps in protection that may result from the application of Italian law may only be solved through an intervention of the lawmaker.