Conference on LGBT families in Europe

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• Conference on LGBT families in Europe
• 4-6 March 2008
• Hotel Mons - Ljubljana, Slovenia
• Same-sex families in the Italian legal framework
  -- an overview from a Childlren's law perspective
  
• by J. Angelo Berbotto Angelo Berbotto
• LLB(Hons)(UTS), LLM(La Sapienza, Rome), CEJF(Lyon
  2), DPSI(IoL)

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• Same-sex
• families
• in Italy

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Timeline - 1994 Monica Bonaccorso
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Timeline Timeline - 2005 Margherita
Bottinoand Daniela DannaLa Gaya
famigliaGay families
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Timeline 2005 - Famiglie ArcobalenoRainbow
Families GLBT Families Association)
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Timeline

• 2008 social attitudes toward same-sex families
  versus the Law and Government institutions
• REMARKABLE CONTRAST

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Same-sex parenting

• Approach to study
• based on the number of adults who perform
  parenting roles in regards to the children.

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Approach

• Dual parenting
• Multiple parenting

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Dual parenting

• Female couples
• Female Female and child(ren)
• Male couples
• Male Male and child(ren)

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Multi parenting

• Recomposed families
• M F children (breakdown) and F F
• F M children (breakdown) and M M
• Co-parenting (M) M F (F) children

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Arrival of children to Family Unit

• Male Female couples adoption - not possible!
• F F (1) known male donor (locally)
• (2) unknown male donor IVF (abroad) (3)
  capable of being known (abroad)
• M M (1) Surrogacy (abroad)

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Adoption

• Requirements according to Italian Law
• Married couples only
• 2 years of cohabitation (before or after
  marriage)
• Law Nº 184 of 4 May 1983 and Law Nº 149 of 28
  March 2001
• No singles
• No de facto straight couples
• No same-sex couples

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Adoption by Italian same-sex couples

• Adoption in the context of heterosexual marriage.
  Eventual break-up and one parent starting a
  same-sex relationship.
• Adoption by Italian same-sex couple in a State
  that allows it.

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Italian same-sex couples adopting abroad

• M M couple
• Massachussetts extended period
• Marriage
• Adoption Foreign Court child adopted by BOTH
  dads with equal parental responsability
• Repatriation
• Registration of adoption in Italian Civil
  Registry
• Italian Childrens Court

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Reasons for not accepting registration

• Marriage a sine qua non requirement for adoption
  in Italy
• Marriage not allowed to individuals of same sex
• In Italy the plaintiffs could have never obtained
  such a Court order
• BUT...

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BUT

• If adopted just by one parent... registration
  wouldve been possible
• Why? Because it would not OFFEND Public Policy
• Judge At least for the time being allowing the
  CREATION of a parenting bond between a child and
  two individuals of the same sex remains against
  our fundamental ethical and social principles
• Decision of the Childrens Court of Brescia of
  25 September 2006
• reported in Famiglia e Minori, Guida al Diritto
  Il Sole 24 Ore, Feb 2007 p. 74

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Result

• Application for registration by same-sex couple
  rejected.
• Reaffirming of adoptio naturam imitatur which is
  the principle informing Adoption Law in Italy.
• And the child...?

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F F couples

• known male donor
• D-I-Y locally
• unknown male donor
• IVF (abroad Netherlands, Denmark, Spain, UK,
  Portugal)
• (3) male donor capable of being known (abroad
  Netherlands, )
• .

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(1) Known male donor

• Health risks same as in conventional
  intercourse.
• Legal risks donor may recognise the child.
• Presumption that recognition is in the best
  interest of the child.
• Rebutting the presumption child in stable,
  loving family environment.
• If loving family environment is provided by two
  mothers? Yet to be tested.

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(2) Unknown male donor

• Law Nº 40 of 19 February 2004
• IVF only to married or de facto couples of the
  opposite sex.
• only where the IVF involves using the couples own
  genetic material.
• Consequence
• Same-sex couples go abroad to use IVF.
• Reproductive tourism industry with same-sex
  couples travelling to Belgium, Denmark, the
  Netherlands, Spain, the United Kingdom and
  Portugal.

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(3) Unknown male donor capable of being known

• Some countries that allow IVF to same-sex couples
  have anonymous donor policies (e.g. Belgium)
• Others allow children to find out the identity of
  the donor (e.g. Netherlands, child must be at
  least 16 years old)
• Some Italian female couples prefer having the
  option of donor information becoming available
  should their children want to know one day
• European countries with disclosable donor
  identities are the Netherlands, Sweden, Germany,
  Austria, the United Kingdom and Switzerland.

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Parenting in male couples

• -Surrogacy abroad USA and Canada
• -Entire process circa 2 years

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The Law and dual parenting families

• Two parents but treated as single-parent
  household

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The Law and dual parenting families

• 2. Death of legal parent guardian appointment
  of social parent in Will... Not binding,
  discretion of the judge supervising guardianship

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The Law and dual parenting families

• 3. Death of social parent Italian Law of
  Succession

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The Law and dual parenting families

• What same-sex parents do to ensure continuity of
  the family if legal parent passes away
• register as a family unit for the purpose of
  local government
• enter into cohabitation agreements
• nominate each other as provisional guardian in
  case of the others temporary incapacity
• Leaving documentary evidence (paper trail) about
  their relationship and family life sufficient
  elements for a Judge to deem it in the best
  interest for child to remain with social parent.

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Separation

• No specific legislation
• Only in relation to grandparents-grandchildren
• Application by analogy to right of the child to
  continue significant relationship with social
  parent

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Way forward

• Recognition of same-sex relationships by the
  Law CUC, CUS, DiCo, Marriage
• Presumption of parenting
• Adoption
• Interest of the child over prejudice
• .