Judgment 221/2019: prohibition to apply ART techniques to a lesbian couple is not unconstitutional, as the Italian Legislator may pursue the ideal of a family model reproducing “nature” (in Latin, familiae ad instar naturae). These are two joint cases. Mine was different, in that one woman produces eggs, but a pregnancy would be life-threatning, and her partner cannot produce eggs, but may carry a pregnancy to term. I’ll used this situation for leverage, as there is a reproductive pathology affecting both women (see arguments against raised in Gas et Dubois, mentioned by the Court), Moreover, I argued that only a relationship with a woman grants the first woman the possibility to become a genetic mother (being married to a man would not help, given the ban on surrogacy). So being lesbian in her case is a blessing! The Court said that, well, yes, there is actually a pathology, but then what! We allow this couple access, but deny it straightforward to other lesbian couples? This would lead to unfair treatment, so it’s best to denied them all access… A first case of what I would call “deprivative equality”!
A second case dealt with an Italian-US couple and the formation of a birth certificate by Italian authorities for a child born as a US citizen, whose lex personae identifies the Italian same-gender spouse of the biological mother as a mother as well, based on consent.
The Court preferred to dodge the question and dismissed the case on procedural grounds. An obiter dictum, though, states that Italian law prima facie does not allow same-gender parenthood based on mere consent to reproductive techniques.
It’s a case of mine started in 2016, for which I already made some communications to this listserve.
Courtesy of Alexander Schuster
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 