The Italian Constitutional Court, with judgment no. 115 of 21 July 2025, marks a new evolutionary milestone in the Italian legal landscape dedicated to filiation, parenthood and, more generally, the pluralism of family configurations.

The Court found a violation of the principle of equality enshrined in Article 3 of the Constitution and consequently declared Article 27-bis of Legislative Decree no. 151/2001 unconstitutional to the extent that it did not recognize paternity leave for the intentional mother in female couples registered as parents in the civil‐status records.

Article 27-bis of Legislative Decree 151/2001 allows a working father to be absent from work for up to ten days, with an allowance equal to his full salary, in a period running from two months before to five months after childbirth. The aim of this provision is to ensure an equitable distribution of parental duties and to foster an early bond between parent and child. However, the rule has not been reformed despite subsequent legislative, jurisprudential, and social developments that have led the legal system to acknowledge and recognize a plurality of family models. As a result, the provision does not take into account social parenthood or the position of the intentional mother. Excluding the intentional mother from this benefit therefore creates an unjustified disparity compared with the father in heterosexual couples, since both types of couples share the same needs: assuming parental responsibility, dedicating adequate time to the newborn (including by adjusting working hours), and promoting a stable relationship with the child.

Legal recognition of parental status for members of a same‐sex couple is achieved through registration in the civil‐status records: this includes the transcription of foreign birth certificates listing two mothers; foreign orders of full adoption by two women; or special‐case adoptions for the intentional mother under Article 44, paragraph 1, letter d), Law no. 184/1983. In all these cases, the social mother voluntarily and consciously assumed procreative and parental responsibility, sharing the commitment to care for and responsibility for the newborn with her partner or civil partner. The parental bond, therefore, originates from the so-called procreative will or self-determination oriented towards parenthood, which leads to the subsequent assumption of parental responsibility. In a couple that “has shared the project of parenthood,” these duties function to secure the child’s best interests (as also recalled in judgment no. 68 of 2025).

The Court observed that, while it may distinguish in the abstract between the roles of gestational mother and father, even in female couples one can identify two equivalent parental figures: the biological mother and the intentional mother. Both must have the time and resources necessary for the child’s care. It is therefore unreasonable not to extend to the intentional mother the same mandatory leave provided for the father.

 

(Comment by Stefania Pia Perrino)