The decision of the European Court of Human Rights in the case of X v. Italy of October 9, 2025, concerns the alleged violation of Article 8 of the ECHR because of the rectification of the birth certificate five years after the birth of a child born through medically assisted procreation abroad, insofar as it also recognizes the intended mother as the mother. The Court ruled out a violation of Article 8 of the ECHR on the grounds that the same level of protection can be achieved by measures other than the transcription of the foreign birth certificate in the civil registry, as identified by constitutional, legitimacy, and merit case law. In particular, the intended mother should have applied for adoption in the specific cases referred to in Article 44(d) of Law 184/1983 (Adoption Law) and, in the case in question, she did not do so. Therefore, the correction requested by the public prosecutor pursuant to Article 95 of Presidential Decree 396/2000 is not such as to cause harm to the rights of the child, who is in a situation of legal instability.

To reach this conclusion, the European Court of Human Rights uses several arguments.

First, the Court recalls that respect for private life requires that every child be able to establish the details of their identity as a human being, including their parentage, as already stated in the Mennesson v. France case (No. 65192/11, §§ 46 and 96, ECHR 2014). For the purposes of applying the family life aspect, it is sufficient that the intended parents care for a child born through ART from birth, as biological parents would, and that the child and parents live together in a way that is indistinguishable from “family life” in its usual sense. However, Member States have, under Article 8 § 2 of the ECHR, a wide margin of appreciation, considering the relevant conflicting public and private interests at stake. Similarly, the legal recognition of a parent-child relationship between a minor and an adult without biological ties raises ethical questions. Therefore, the State's legal system must offer a legal solution that provides the child with the legal identification of persons responsible for raising him or her, providing for his or her needs, ensuring his or her well-being, living and developing in a stable environment and, among these rights, also the right to have his or her relationship of filiation with the intentional parent recognized, regardless of sexual orientation.

Nevertheless, the time factor must be considered from two points of view.

The first: this recognition was prevented in Italy until May 2025, because the Constitutional Court recently declared Article 8 of Law No. 40/2004 to be unlawful regarding the prohibition on the intended mother from recognizing as hers a child born in Italy by ART performed abroad. These recalls ruling no. 6872025. 

Secondly, the Court must assess whether the impossibility that existed prior to the Constitutional Court's ruling constituted a failure by the defendant State to fulfil its positive obligation to guarantee the child's right under Article 8 of the ECHR.

To verify the existence of a breach, the Court analysed numerous precedents on the subject and even Advisory Opinion No. P16-2018-001. In these cases, it was stated that it cannot be ruled out that states, within their margin of appreciation, may refuse to recognize the bond between parent and child to private individuals. Nevertheless, it was also acknowledged that such refusal must be compensated for by the establishment of an effective mechanism, even if only de facto, capable of providing some legal recognition of the relationship and overcoming the condition of legal uncertainty.

At least since 2014, Italian case law, first on the merits and then on legitimacy, has begun to admit the appeal of the intentional parent to adoption in particular cases. The Constitutional Court has progressively modified the rules governing this type of adoption by removing or modifying the provisions that resulted in less favourable treatment for children born through ART. Consequently, prior to ruling no. 68/2025, there was a mechanism in place to provide legal recognition of the bond between the intended mother and the child; therefore, there was no general and absolute impossibility in violation of Article 8 of the ECHR.

That being said, even with a correction to the birth certificate, the applicant's intended mother could have already requested adoption in special cases for the child and avoided the legal uncertainty. Although the Constitutional Court recently stated that mild adoption is not equivalent to a parent-child relationship established by means of a transcription, total equivalence is not required by Article 8 of the ECHR, especially in view of its interpretation by the Court in its previous rulings.

The intended mother and the biological and legal mother decided, in the Court's view, not to apply for special adoption and contributed to prolonging the instability resulting from the rectification of the birth certificate.

Judge Adamska Gallant, however, expressed her dissenting opinion with a series of critical observations. The judge did not share the majority opinion: while it is true that the applicant could have initiated the adoption, the child is the direct subject of that procedure and cannot be held responsible for the procedural choices made by the parent. Indeed, the annulment of the appellant's birth certificate after more than five years raises serious concerns: it is the Italian State, through its own error, that has created a long period of uncertainty and legal instability for the child.

 

(Comment by Stefania Pia Perrino)