Decision of the Juvenile Court of Rome 23 December 2015

Through this decisions, the Juvenile Court of Rome accepted the request for adoption of a child by the same-sex partner of the biological father, despite contrary opinion from the public Prosecutor. The Juvenile Court was aware that this issue was, at the moment, under examination by Parliament in the framework of a comprehensive regulation of the rights and duties of same-sex couples (the same-sex marriage is not envisaged in Italy’s domestic legal order, and there were no special norms on the protection of same-sex couples in national legislation, at the time of the decision). Nonetheless, the Court ruled that Article 44.1.d of law No. 184/1983 concerning “children’s adoption under particular circumstances” was applicable in the case. For the Court, these law provisions were to be interpreted in accordance with the Constitution and the European Convention on the Adoption of Children as revised in 2008. A further reference point was respect for private and family life in accordance with Article 8 of the ECHR, as interpreted by the European Court of Human Rights. The Prosecutor had also requested to start the procedure for eliminating the transcription in the vital records – for violation of the public order – of the birth certificate of the child, who was born in Canada from a surrogate mother; and this because surrogate maternity is not allowed in Italy. For the Court, this request was inadmissible: the fact that the birth certificate of the child indicated the biological father as being his only parent was decisive with this regard; the Court noted, in addition, that it is a well-established principle in the jurisprudence  of the European Court of Human rights that the child’s best interest should prevail over other any interests linked to public order.