La questione del cognome paterno

Translated by Alvise Cecchetti

On the 27th of April, the Italian Constitutional Court ratified through a press release the illegitimacy of the norms attributing automatically to a newborn the father’s surname. The publication of this judgement is expected for the following weeks, however, the issue faced by the Court is already known in Italian jurisprudence.

Precedents

The attribution of the father’s surname had been already tackled by the CEDU in the Cusan and Fazio c. Italia’s case. The Strasbourg Court had condemned Italy because the automatic attribution of the father’s surname was to be considered as a discriminatory action according to art.8 of the European Convention of Human Rights. This article does not explicitly mention the mother’s surname but remarks on the respect for private and familiar life. However, the Italian legislator decided not to follow Strasbourg’s sentence.

In 2016 another sentence stated by the Italian Constitutional Court declared the illegitimacy of those dispositions in the Italian legal system preventing the attribution of both the father's and mother’s surnames to the newborn in cases where there is a common agreement between parents. However, the Court has then saved the attribution of the father’s surname, asking the Parliament to re-module the law. Also in this case there wasn’t a follow-up.

The decision of the Constitutional Court

The case that has brought to the recent decision was raised following a judgement of constitutional legitimacy arose by the Court of Bolzano. The issue was related to a non-married couple that had jointly decided to give their newborn the mother’s surname and not the father’s. However, the Italian Civil Law code does not admit this possibility, despite the adjustment made in 2016. Art. 262 states: “The newborn takes the surname of the parent who first recognizes the newborn. If the newborn was recognized by both the parents at the same time, it receive the father’s surname.”

The court has declared the norm as unconstitutional because it is detrimental to the child’s identity and in contrast to art. 2, 3, 117, I comma, of the Italian Constitution. This last article also mentions the conventions to which the Italian Republic adheres. Particularly, art. 8 and 14 of the CEDU (the same articles that led to condemn Italy in 2014). The decision regards the norms related to the automatic attribution of the surname of children born inside or outside the marriage and adopted children.

Although this is a landmark ruling, there are still open issues in relation to which the Parliament must speak out. The hope is that this decision will lead to a legislative follow-up, a decision of the parliament that can solve a problem that risks creating a legal vacuum with unfortunate consequences for all citizens.