Order of the Juvenile Court of Bologna No. 4701 of 10 November 2014

The order of the Juvenile Court in Bologna concerns the case of two women married in the USA, each one having adopted the child of the other, with the children born thanks to medically assisted procreation. The Court examined a recourse introduced by one of these women, aimed at obtaining the enforcement in Italy of the decision concerning the adoption issued by a US Court. Same sex marriage is not allowed in Italy; on one hand, it is not regarded as contrary to public order, because this would be inconsistent with the ECHR as interpreted by the European Court of Human Rights; on the other hand, it has no legal effects in Italy. This was a serious obstacle to recognition, because: a) adoption is allowed, as a rule, only by married couples under Italian legislation, and b) law No. 184/1983 concerning “Children’s Right to a Family”, which allows adoption, under certain circumstances, also by unmarried persons, was deemed by the Juvenile Court not applicable in the case. From hence, it was impossible to the Juvenile Court to decide on the recourse in accordance with the principle of the best interest of the child, as is required by the relevant treaties and national legislation. As a consequence, the Court raised a question of constitutional legitimacy of law No. 184/1983 insofar it has not authorized the judge to recognize, in the child’s best interest, a foreign decision on adoption, irrespective of whether the relevant marriage has or not legal effects in Italy.