The Constitutional Court, with judgment no. 155 of 2025, addressed a matter of great legal and social significance: the ascertainment of parenthood from medically assisted procreation after the completion of a gender transition. The case brought before the Constitutional Court originated from an order of the Tribunal of Como which had raised doubts of constitutional legitimacy regarding Articles 9 and 12 of Law no. 40 of 2004 insofar as they prevent persons of the same sex from undergoing an MAP treatment.

In particular, a different-sex couple initiated a cycle of artificial fertilisation, gave informed consent to the retrieval and cryopreservation of their gametes for future use. The gametes were subsequently used to achieve a pregnancy in the partner; subsequently, one of the two patients undertook a gender transition. The same person, having become a parent, requested the ascertainment of their parenthood in relation to the minors born thanks to the MAP treatment. The Tribunal of Como held that the subsequent transition affects and results in a breach of the access requirements to MAP and, therefore, interferes with the possibility of considering the consent given as the source of the parent–child relationship.

The Constitutional Court, however, excluded that the issue concerns the access requirements to medically assisted procreation, observing that such requirements were respected at the time the cycle was initiated. Rather, according to the Court, one must interrogate the codified prerequisites for the ascertainment of paternity, which are founded on the biological datum shared between parent and child. For this reason, the question of constitutional legitimacy raised was declared inadmissible. Thus, even in a case of parenthood from MAP, the ascertainment of paternity finds its foundation in biological reality, that is in the genetic relationship, and not instead in the consent given at the time of the treatment. The Court therefore draws a clear distinction between the plane of access to care and that of the constitution of the parent–child bond. This approach reduces the legal instability of the parent–child relationship for the minors involved.

The judgment marks a further step in the case law on “reproductive contingencies”: after cases relating to subsequent matrimonial crises and to the death of one of the partners, the Court addresses gender transition as a supervening factor. The solution adopted favours the protection of the certainty of family relationships and the paramount interest of the minors over considerations that would imply the ex post reconsideration of rights already constituted.

The ruling leaves normative and systemic questions open. The codified instruments that govern the ascertainment of paternity do not contemplate the specificity of assisted procreation nor cases of gender transition. Thus, a normative gap emerges both in the civil code and in the law on medically assisted procreation. Moreover, the central value of informed consent as an act of authorisation for the medical treatment and, at the same time, constitutive of the bond between the social parent and the child is devalued, taking into account the type of medical treatment performed, namely homologous fertilisation with the gametes of the two patients, without recourse to reproductive cells from third-party donors to the couple.

Judgment no. 155 of 2025 confirms the centrality of the biological datum, as already occurred in previous rulings on reproductive contingencies, opening the way to a necessary social and legal debate to address in an organic and systematic manner the issues relating to reproductive contingencies during cycles of artificial fertilisation.

 

(Comment by Stefania Pia Perrino)