Conference on LGBT families in Europe 4-6 March 2008 Hotel Mons - Ljubljana, Slovenia

1. 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)

2. Same-sex families in Italy

3. Timeline:- 1994: Monica Bonaccorso

4. Timeline:Timeline:- 2005: Margherita Bottinoand Daniela Danna“La Gaya famiglia”“Gay families”

5. Timeline:2005 - Famiglie ArcobalenoRainbow Families – GLBT Families Association)

6. Timeline: 2008 – social attitudes toward same-sex families versus the Law and Government institutions REMARKABLE CONTRAST

7. Same-sex parenting Approach to study: based on the number of adults who perform parenting roles in regards to the children.

8. Approach • Dual parenting • Multiple parenting

9. Dual parenting • Female couples: Female + Female and child(ren) • Male couples: Male + Male and child(ren)

10. 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

11. 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)

12. 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

13. 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.

14. 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 Children’s Court

15. 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...

16. BUT • If adopted just by one parent... registration would’ve 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 Children’s Court of Brescia of 25 September 2006 reported in Famiglia e Minori, Guida al Diritto – Il Sole 24 Ore, Feb 2007 p. 74

17. 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...?

18. 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, ) .

19. (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.

20. (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.

21. (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.

22. Parenting in male couples -Surrogacy abroad: USA and Canada -Entire process circa 2 years

23. The Law and dual parenting families • Two parents but treated as single-parent household

24. 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

25. The Law and dual parenting families 3. Death of social parent: Italian Law of Succession

26. 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 other’s 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.

27. 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

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