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What changes for children of Lgbt couples

by - April 11, 2023

 What are ways for LGBT to have kids?

What changes for children of Lgbt couples

Here's what changes in practice after the Senate's "no" vote on the recognition of children of Lgbt couples

  • Why the "no" to the recognition of children born to Lgbt couples
  • Today there is a lack of a law to protect the children of Lgbt couples
  • What specifically changes for children of Lgbt couples
  • What is "adoption in special cases"
  • The limits: "half" parents?
  • The jungle of bureaucracy
  • How it works in Europe

As of today, Lgbt couples have one more problem. Indeed, the rejection by the Senate European Policy Committee of the recognition of children of Lgbt couples has immediate practical consequences.

The majority voted "no" to a Brussels proposal that seeks to equalize the rights of children of heterosexual couples with those born within families with two mothers or two fathers. It effectively represents a stop to the equalization of so-called "social parenting" with biological parenting. Recently, moreover, the Ministry of the Interior urged of prefects to stop the "de facto recognition" that some municipalities (such as Milan and Turin) had been implementing for some time. But what actually changes?

Why the "no" to the recognition of children born to Lgbt couples

The Senate resolution rejected what is currently a proposal of the European Commission "in particular the obligation of recognition (and consequent transcription) of a judicial decision or public act, issued by another member state." Basically, it said "no" to "the obligation to recognize the European certificate of filiation." What does this mean? "The EU regulation that was intended to be approved would not need implementing laws: it means that, unlike European directives, if it had been approved it would have come into force immediately," explains attorney Lorenzo Puglisi, of Family Legal, a firm specializing in Family Law. "It is clearly a political choice. Italy today is the third last country not to have a law on filiation for same-sex couples. Until now there had been autonomous and differentiated initiatives by mayors, who had intervened administratively by establishing specific registers where to transcribe the births of children of same-sex couples. Now the Senate wanted to block this distortion, which is the result of a loophole: a specific law would be needed," the lawyer continued.

Today there is a lack of a law to protect children of Lgbt couples.

To understand the consequences of the decision, it is necessary to recall that to date Italy lacks an organic law regulating the matter. That is why already two years ago, in January 2021, the Constitutional Court had urged Parliament to recognize "social parenting," in order to fill "as soon as possible the reported void of protection, in the face of incompressible rights of minors. It is hoped for a regulation of the matter that, in an organic manner, identifies the most congruous ways of recognizing the stable affective ties of the child, born from medically assisted procreation practiced by same-sex couples, towards the intentional mother as well." In short, children born to same-sex couples through medically assisted fertilization (in the case of two women), or surrogacy (in the case of two fathers), to date are not equated with those born to heterosexual couples, so they have fewer rights.

What specifically changes for children of Lgbt couples

The situation, which until now was already complex, has become even more complicated. Until now, in fact, many same-sex couples who had resorted to heterologous assisted fertilization abroad or surrogacy (both of which are not allowed in Italy) proceeded with the transcription of the birth certificate obtained in the foreign country, at their Italian municipality. This was not possible everywhere, but in cities such as Turin and Milan, for example, many transcriptions have been made so far. Last December, however, the Court of Cassation in United Sections ruled that this route was not legitimate, pointing to "adoption in special cases" as the only possibility. In January 2023, moreover, the Interior Ministry urged prefects to enforce the ruling, annulling any municipal recognitions. Milan was also ordered to proceed with "adoptions in special cases" for children born to two mothers in Italy.

What is "adoption in special cases"

"Meanwhile, it should be clarified that Law No. 184 on adoption dates back to 1983 and is absolutely anachronistic compared to the current situation. It was provided for the benefit of relatives or third-party strangers, in the case of children with infirmity or disability, thus handicapped, or for adoption in cases of impossibility of pre-adoptive fostering. These are all very limited cases that make it unlikely that an application for adoption for special cases, for a homosexual father, will be granted," Puglisi explains. "Different is pre-adoptive foster care or fostering: since there are many communities for minors that have situations that need immediate foster care, this is also granted to singles or homosexuals, albeit subject to revocability. Often foster care, if they are willing and diligent parents, is repeated even until the children come of age. This is why I urge not to be discouraged: it is true that only adoption provides for the equalization of natural rights, but if one has a deep sense of parenthood and wants to take care and charge of a child, let us not forget this institution either," Puglisi clarifies.

The limits: "Half" parents?

Many point out the limitations of adoption in particular cases, especially in the rights of the nonbiological parent, who is often a "half-parent": for example, the intentional mother, as the one who has not physically given birth is called, in order to have her role recognized, must petition the Juvenile Court (which, moreover, is expected to disappear soon due to the short divorce reform), despite the fact that she has already given her consent to heterologous fertilization together with her partner. The court itself can check his parental eligibility through social workers and asset requirements to ascertain his economic soundness. The biological mother's consent is also needed for the adoption to go through, and the time frame is generally very long. In the meantime, the intentional mother must be delegated in any child care tasks, such as pick-up from school, medical appointments, field trip approvals, sports registration, etc. As a matter of fact, the intentional mother until she obtains adoption (however revocable in case of offenses committed by the child against the adoptive parent) has no rights over the child, who is deemed to be the child of the sole partner, neither in case of the latter's death, nor in case of separation, when the biological parent - as has already happened - can ask for the termination of the relationship between the child and the ex. "On the other hand, again in the case of separation, the non-biological mother is not even required to support the child she had been taking care of up to that point," notes Family Legal's expert.

The jungle of bureaucracy

Even before the "stop" imposed by the Senate and the Ministry of the Interior, there were still complications at the bureaucratic level. Meanwhile, it was necessary for the municipality of residence to be among those that had decided to proceed with the recognition of children of same-sex couples (such as precisely Milan or Turin). As Corriere della Sera recalls, moreover, many public offices still do not have forms that include the wording of same-sex parents, but only those of mother/father. Even Inps digital files do not allow the indication of two mothers or two fathers, but it is necessary to go to the counters on the territory.

How it works in Europe

If the situation in Italy is complicated, there is also no uniformity at the European level. As is the case here, not even in Greece is there recognition for same-sex marriages or the children that may be born to them. Where, however, there is, there are still some differences, even between two-woman couples and two-man couples. For example, while for lesbian couples there are near-automatic procedures that equalize both women as standing parents, in France the non-biological father is necessarily adoptive. "In Spain it works similarly with Stepchild Adoption, which in Italy has never become law, while "in Germany and Austria the transcription of the administrative act of birth through surrogacy equalizes the parents," Puglisi confirms.

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