Italy’s Constitutional Court has ruled Article 27-bis of Legislative Decree 151/2001 unconstitutional for denying mandatory paternity leave to the non-biological mother in female same-sex couples legally registered as parents. The landmark decision (Sentence No. 115), filed today, follows a discrimination appeal raised by Brescia’s Court of Appeal.
The contested provision exclusively granted fathers in heterosexual couples 10 days of fully paid leave, thereby excluding the “second mother” in female couples recognized as dual parents in civil registries. The Court deemed this disparity “manifestly unreasonable” when comparing different-sex parental couples to female couples who legally conceived a child through overseas medically-assisted reproduction under local law.
The ruling emphasized that both mothers share identical legal parental duties toward the child’s welfare, regardless of sexual orientation. The Court explicitly recognized the “intentional mother” – who jointly undertakes care responsibilities – as functionally equivalent to the father in heterosexual unions. This distinction between biological and intentional mothers, it stated, safeguards the child’s fundamental right under Italian (Civil Code Articles 315-bis, 337-ter) and international law to maintain relationships with both parents.
Regarding paternity leave specifically, the Court underscored its necessity for adequate childcare time and work-life balance, stressing that parental functionality is identical in same-sex and heterosexual families. The verdict affirmed that sexual orientation bears no relevance to parental capability.
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