JUDGMENT NO. 155

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy review proceedings of Articles 5 and 12, paragraphs 2, 9, and 10, of Law 19 February 2004, n. 40 (Provisions concerning Medically Assisted Procreation), referred by the Ordinary Court of Como, First Civil Section, in collegial composition, in the proceeding between M. P. and M. B., by order of 13 September 2024, registered under no. 186 of the register of ordinary proceedings of 2024 and published in the Official Gazette of the Republic no. 42, special first series, of the year 2024.

Having reviewed the statements of appearance of M. P. and M. B., of Federica Benzi in her capacity as special guardian of the minors V. P. and B. P., as well as the statement of intervention by the President of the Council of Ministers;

having heard the Reporting Judge Filippo Patroni Griffi in the public hearing of 8 July 2025;

having heard the attorneys Susanna Lollini for M. P. and M. B., Federica Benzi in her capacity as special guardian of the minors V. P. and B. P., as well as the State Attorney Wally Ferrante for the President of the Council of Ministers;

deliberated in the council chamber on 9 July 2025.

Facts Considered

1.– By order of 13 September 2024 (ord. reg. no. 186 of 2024), the Ordinary Court of Como, First Civil Section, in collegial composition, raised questions of constitutional legitimacy regarding Articles 5 and 12, paragraphs 2, 9, and 10, of Law 19 February 2004, n. 40 (Provisions concerning Medically Assisted Procreation), on the grounds that by limiting access to Medically Assisted Procreation (MAP) techniques solely to opposite-sex couples, they prevent a couple composed of members currently of the same sex from accessing such techniques, for the purpose of allowing homologous fertilization between the male gamete of one of them (cryopreserved before the rectification of sex assignment, when the couple consisted of members of different sexes) and the female gamete of the other, and consequently penalize anyone who applies these techniques to same-sex couples; thus precluding such a couple from proceeding with the judicial recognition and declaration of paternity.

The questions are raised with reference to Articles 2, 3, 31, second paragraph, 32, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Articles 8 and 14 of the European Convention on Human Rights; Articles 2, paragraph 1, 17, 23, and 26 of the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on 16 December 1966 concerning the prohibition of discrimination and the right to respect for private and family life, and Articles 2, 3, and 9 of the UN Convention on the Rights of the Child, approved by the United Nations General Assembly on 20 November 1989, ratified and enacted by Law 27 May 1991, n. 176.

2.− The referring judge reports that the applicant, M. P., acting in her own right and as the parent of two minors, requested the ascertainment and declaration of the genetic parentage of the respondent M. B., so that the minor daughters may be recorded as the children (also) of the latter, with subsequent annotation on the birth certificate of M. B.'s name as mother or, in the alternative, parent, and the surname of the minors as "P. B.”, thus also indicating M. B.'s surname. The respondent, who is in a civil union with the applicant, expressed her agreement with the requests made by the latter. The special guardian of the minors also joined the request, formulating a subordinate claim that in the birth certificate the respondent—donor of the male gamete prior to the rectification of sex assignment—be indicated not "as mother,” but "as father.”

2.1.− The referring judge prefaces a brief reconstruction of the facts, representing that:

− during 2012, the applicant began a relationship with the then Ma. B.;

− in 2014, the latter began a process for the rectification of sex assignment, culminating in the judgment of 13 October 2016 for the rectification of sex assignment (to female) and name (to M. B.);

− on 25 December 2018, V. P. was born in Como, following informed consent given by both M. P. and M. B., by means of medically assisted fertilization using semen (belonging to M. B.) cryopreserved under the name "Ma. B.”;

− on 25 February 2019, the respondent was appointed guardian of V. P., and on 16 May 2019 the parties established a civil union;

− on 3 March 2021, the Court of Como rejected the appeal pursuant to art. 95 of Presidential Decree 3 November 2000, n. 396 (Regulation for the review and simplification of civil status legislation, pursuant to article 2, paragraph 12, of Law 15 May 1997, n. 127) against the refusal by the civil status officer to proceed with the recognition of paternity, by M. B., of the minor V. P.;

− on 12 June 2021, B. P. was born in Como, following informed consent given by both M. P. and M. B., again by means of medically assisted fertilization using semen (belonging to M. B.) cryopreserved under the name "Ma. B.”.

2.2.− Having established the facts, the referring judge reviews analogous cases to the one under examination, highlighting their differences.

In particular, with reference to the figure of the "merely” intentional mother, regarding which Judgments no. 230 of 2020 and no. 32 of 2021 of this Court are recalled, it is pointed out that in those cases it was affirmed that, although the parentage of a child resulting from the recourse to MAP techniques is linked to the "consent” given and the "responsibility” consequently assumed by both subjects who decided to resort to such procreative technique, it is nonetheless necessary that those involved in the shared procreative project be opposite-sex couples, given that same-sex couples cannot access MAP techniques in Italy, as expressly provided for by art. 5 of Law no. 40 of 2004.

This being established, the profound difference with the present case is emphasized, where the parent for whom recognition is sought is not "merely” an intentional mother but the biological parent. The "aspiration of the intentional mother to be a parent,” which Judgment no. 230 of 2020 excluded could rise "to the level of a fundamental right of the person,” would thus be foreign to the case under review.

Furthermore, regarding the differences with the hypothesis where, within a female same-sex couple resorting to medically assisted procreation, one donated the ovum and the other carried the pregnancy to term using a male gamete from an unknown third party, it is stressed that in the present case, the contribution of M. B. herself, who provided the male gamete, allowed for procreation (with M. P.'s ovum) through homologous MAP.

Finally, with reference to the case of the deceased father who provided the male gamete (dealt with by the Court of Cassation, First Civil Section, Judgment 15 May 2019, no. 13000, which emphasized the data of "biological descent” between the man and the child born, as well as the child's interest in promptly acquiring certainty of their two-parent descent), it is noted that, in the case under scrutiny in the referring proceedings, the only real difference is that the homologous fertilization via medically assisted procreation is being sought not by an opposite-sex couple, or rather, a couple that remained so even at the time of resorting to fertilization. This difference, however, in light of the biological complementarity of the couple’s members, cannot justify different treatment; recognition cannot be denied to the parent who provided the indispensable male biological contribution to procreation, and the current sex of that parent remains irrelevant.

2.3.− Turning to the examination of the relevant Civil Code provisions, particularly Articles 250 and 269 of the Civil Code, the Court of Como notes, on the one hand, that the respondent could not assume the qualification of mother as she did not give birth or donate the female gamete, and on the other hand, it observes that there would be no logical contradiction nor any prohibition in the legal framework for registering her as the father of the daughters, thereby recognizing the one who provides the necessary male contribution to procreation. Moreover, the subject of the ascertainment in the referring proceedings is precisely the biological fact of procreation.

However, the referring judge continues, the impossibility of making an interpretation of Article 5 of Law no. 40 of 2004 adapted to the Constitution, which would allow same-sex couples, such as the one composed of the applicant and respondent at the time of resorting to MAP, to access the regulated techniques, would stand as an obstacle to this conclusion. This would preclude the recognition of paternity by the parent who contributed with their male gametes to procreation but subsequently became a woman at the time of recognition.

With the issue thus framed, the impossibility of accepting the request for judicial declaration of paternity (as reclassified by the judge) in favor of the respondent is therefore supported, due to the impossibility of reaching a constitutionally oriented reading of Article 5 of Law no. 40 of 2004.

Therefore, in the opinion of the Court of Como, Articles 5 and 12, paragraphs 2, 9, and 10, of Law no. 40 of 2004, in the part where, by limiting access to medically assisted procreation techniques solely to opposite-sex couples, they prevent a couple composed of same-sex members from accessing such techniques for the purpose of homologous fertilization between the male gamete of one of them (cryopreserved before the rectification of sex assignment, when the couple consisted of members of different sexes) and the female gamete of the other, and consequently penalize anyone who applies these techniques to same-sex couples, are in conflict with a series of constitutional provisions:

− Article 2 of the Constitution, as they fail to guarantee the fundamental right of the individual to parenthood and gender identity, discriminating against them based on the choice made;

Article 3 of the Constitution, under a twofold aspect, as:

a) they discriminate against the same-sex couple resorting to homologous fertilization;

b) they discriminate against the one who chose to proceed with the rectification of sex assignment, moreover assigning decisive weight to the moment this choice was made (i.e., before or after the birth of the children, since in the first case, the qualification of father, once recognized by the legal system, cannot be challenged following the change in sex assignment);

− Article 31, second paragraph, of the Constitution, because the protection of filiation and the consequent right of children to two-parent families are irremediably prejudiced by the rejection of the claim of their only biological father to recognize them, thus leaving them exposed to a situation of legal uncertainty on the dual level of social relations and their personal identity;

− Article 32, first paragraph, of the Constitution, as the impossibility of forming a family with children together with one's partner, despite the biological complementarity of their respective procreative contributions, harms the psychophysical health of the couple as well as the children;

− Article 117, first paragraph, of the Constitution, in relation to the following interposed parameters:

a) Articles 8 and 14 ECHR, for the reasons already indicated with reference to the deemed violation of Articles 2, 3, and 31, second paragraph, of the Constitution, also considering that what was affirmed with reference to the "merely” intentional parent by the European Court of Human Rights applies, a fortiori, in the case of a parent having a biological link with the minor;

b) Articles 2, paragraph 1, 17, 23, and 26 ICCPR, concerning the prohibition of discrimination and the right to respect for private and family life, "for the same reasons”;

c) Articles 2, 3, and 9 of the UN Convention on the Rights of the Child, "which imposes upon adhering States the obligation to render these rights effective and to ensure the stability of the minor's bonds and relationships with all persons with whom the latter has established a close personal relationship, even in the absence of a biological link.”

3.− By a document filed on 5 November 2024, the President of the Council of Ministers intervened in the proceedings, represented and defended by the Attorney General, requesting that the raised questions be declared inadmissible or, alternatively, unfounded.

3.1.− As a preliminary matter, the Attorney General pleads inadmissibility on two grounds.

Firstly, it is argued that the examination of the merits is precluded due to lack of relevance, as the referring court merely challenges the provisions of Law no. 40 of 2004 which provide for the prohibition of access to medically assisted procreation techniques for same-sex couples (art. 5) and impose sanctions for the violation of the aforementioned prohibition (art. 12), deeming them an impediment to the judicial ascertainment of parentage in favour of the respondent, without making any reference to art. 8 of the same Law no. 40 of 2004, which governs the legal status of children born from MAP techniques. This, consequently, results in an incomplete reconstruction of the relevant legal framework, which, irremediably compromising the logical path regarding the non-manifest unfoundedness of the questions, leads to their inadmissibility.

Furthermore, the sanctioning provisions contained in the aforementioned art. 12 should be considered extraneous to the thema decidendum, which exclusively concerns the ascertainment of the biological parentage of two minors in favour of the respondent.

The Attorney General thus asserts that the intervention requested pertains to a regulatory datum (Articles 5 and 12 of Law no. 40 of 2004) not relevant for the decision to be taken concerning the proposed status action aimed at a judicial declaration of paternity pursuant to Articles 250 and 269 of the Civil Code.

It is stressed in this regard that the Court of Como itself proceeds to propose a constitutionally oriented interpretation of the aforementioned Civil Code provisions, excluding the existence of a regulatory preclusion for the judicial declaration of the paternity of a biological parent solely because they have (in the meantime) become female. With respect to the proposed constitutionally oriented hermeneutic option, the provisions (Articles 5 and 12 of Law no. 40 of 2004) whose constitutional legitimacy the referring court doubts could therefore not have any obstructive effect.

All of the above would thus result in the inadmissibility of the challenges for insufficient reasoning on the relevance of the question.

Secondly, on a separate ground, the State defense pleads the inadmissibility of the question as it seeks to obtain a manipulative additive judgment in a matter characterized by broad legislative discretion, in which, therefore, a single constitutionally obligatory solution is lacking. Consequently, the requested intervention would exceed the powers vested in this Court.

3.2.− On the merits, the intervener illustrates the reasons why the questions are, in any case, unfounded, both with systematic arguments and with arguments developed in relation to the individual challenges.

On the supranational level, it is noted that the identification of the point of balance between the right to self-determination of the transgender parent, the public interest in the certainty of law and civil status, and the fundamental rights of the child to know their origins, to receive care and education from both parents, and to have a stable legal bond with them, has been the subject of recent judgments by the ECtHR, which have established the legal impossibility for a transgender parent to indicate their current sex on the birth certificate of a child conceived after the sex change.

With reference to the domestic legal system, it is observed that the entire civil regulation of family relationships is centered on the gender diversity of the parents and that the case law of this Court (Judgments no. 230 of 2020, no. 237, and no. 221 of 2019) has excluded the possibility of an interpretation of art. 5 of Law no. 40 of 2004 adapted to extend access to medically assisted procreation techniques to homosexual couples.

With specific reference to the perceived conflict with the standard of reasonableness, it is recalled that the discretionary power of the legislator is subject to constitutional review only where its exercise exceeds the standard of reasonableness that must preside over legislative choices, a circumstance that has not occurred in the normative framework outlined by Law no. 40 of 2004.

The alleged violation of Article 32 of the Constitution is then excluded based on considerations already developed on the subject by this Court, which, in Judgment no. 221 of 2019, affirmed that "[t]he constitutional protection of ‘health’ cannot be extended to the point of imposing the satisfaction of any subjective aspiration or need that a couple (or even an individual) deems essential, to the extent that any regulatory obstacle placed in the way of its realization would be incompatible with the evoked parameter.”

Finally, it is argued that the provisions challenged respect Article 117, first paragraph, of the Constitution and the interposed parameters invoked, in consideration of the broad margin of appreciation recognized to Member States, in the absence of a general European consensus in the regulation of medically assisted fertilization.

4.– By a document filed on 25 October 2024, the special guardian of the two minors appeared in the proceedings, adhering to the request for a declaration of unconstitutionality of Articles 5 and 12 of Law no. 40 of 2004 in the same terms sought by the referring judge.

It is also stressed that the present case is simpler and more "traditional” than it might appear at first glance, as the minors were generated by the parties to the proceedings, inheriting the paternal genetic heritage from M. B. (formerly Ma. B.) and the maternal heritage from M. P., who gave birth to them. The only obstacle to the recognition of their right to a two-parent family is the fact that one of the parents underwent the gender transition process before the birth of the minors. Given the same biological situation concerning the male genetic contribution, if the transition process had been completed by the father after the conception and birth of the minors, M. B. would have acquired the status of their parent by virtue of the transfer to her of all the rights and duties previously belonging to Ma. B.

5.– By a document filed on 4 November 2024, the applicant and the respondent in the referring proceedings also appeared in the proceedings, requesting that the questions be declared inadmissible.

The reasoning put forward by the Court of Como is critically re-examined, observing that in the present case, the challenged Article 5 should not apply, and the alleged doubt of constitutional legitimacy could, at most, be directed towards Article 250 of the Civil Code.

It is, in fact, highlighted that the request made judicially is aimed at ascertaining the relationship of filiation strictly connected to the male genetic link that binds the two little girls to M. B., formerly Ma. B., and therefore does not concern Law no. 40 of 2004, which relates to the requirements for access to MAP.

6.– On 13 June 2025, the special guardian of the two minors filed a memorandum, in which she insists on the acceptance of the question.

Addressing the recent ruling no. 68 of 2025 of this Court, it is observed that the declaration of unconstitutionality of art. 8 of Law no. 40 of 2004 would also have consequences on art. 250 of the Civil Code, referenced by the subsequent art. 269.

Since this judgment emphasized the centrality of the minor's interest in two-parent family relationships and recognition, from birth, as a child of the couple, it is stressed that it would a fortiori allow recognition in the present case, where the intentional mother is also the biological parent.

7.– On 16 June 2025, M. P. and M. B. also filed a memorandum, likewise starting from the reading of Judgment no. 68 of 2025 of this Court.

It is asserted that this ruling would allow the referring court itself to articulate a decision accepting the request for status ascertainment, if not based on the ascertainment of the existing genetic link, then precisely by virtue of the aforementioned art. 8, as access to MAP abroad by two women (as the applicants are by virtue of the preceding rectification of sex assignment judgment) would no longer constitute an obstacle to the recognition of the status filiationis.

Legal Considerations

1.– By the order indicated in the heading (ord. reg. no. 186 of 2024), the Ordinary Court of Como, First Civil Section, in collegial composition, raised questions of constitutional legitimacy regarding Articles 5 and 12, paragraphs 2, 9, and 10, of Law no. 40 of 2004, in the part where, by limiting access to medically assisted procreation techniques solely to opposite-sex couples, they prevent a couple composed of same-sex members from accessing such techniques for the purpose of homologous fertilization between the male gamete of one of them (cryopreserved before the rectification of sex assignment, when the couple consisted of members of different sexes) and the female gamete of the other, and consequently penalize anyone who applies these techniques to same-sex couples. In other words, the prohibition for same-sex couples to access MAP determines the impossibility of recognition by the biological parent who has changed sex, thus precluding, pursuant to art. 250 of the Civil Code, the acceptance of the request for judicial declaration of paternity, which is only possible in cases where recognition is permitted.

The violation of Articles 2, 3, 31, second paragraph, 32, first paragraph, and 117, first paragraph, of the Constitution is put forward, the latter in relation to Articles 8 and 14 ECHR, Articles 2, paragraph 1, 17, 23, and 26 ICCPR concerning the prohibition of discrimination and the right to respect for private and family life, and Articles 2, 3, and 9 of the UN Convention on the Rights of the Child.

2.− As a preliminary matter, the Attorney General’s objection of inadmissibility of the questions, as allegedly aimed at obtaining a "manipulative additive judgment” in a matter characterized by broad legislative discretion, such as access to MAP techniques, must be rejected.

In the present case, in fact, there is no request to intervene on this aspect of the regulation.

The referring court, in fact, complains about the repercussions on the possibility of recognition, and therefore on the judicial declaration of paternity, which would derive, pursuant to the challenged art. 5, from the impossibility for homosexual couples to access MAP.

The present questions, therefore, as better explained in the merits discussion, do not touch in any way the aspect of the aspiration to parenthood, but concern the interest of the child born in Italy from MAP performed abroad to be recognized, in particular, also by the parent who provided the male gamete, who subsequently became female.

3.– The Attorney General also objects to the inadmissibility of the questions raised "due to lack of relevance," arguing that the constitutionally oriented interpretation of the legal provisions relevant to the decision of the proposed status action (Articles 250 and 269 of the Civil Code), proposed by the referring court itself as capable of ensuring the superior interest of the minors, would not be in any way precluded by the challenged Articles 5 and 12.

These claims, as presented, touch upon the reconstruction of the relevant legal framework, more properly involving aspects of the merits of the questions, to whose discussion they must therefore be referred.

4.– On the merits, the questions must be declared inadmissible.

4.1.– The referring proceedings concern a status action aimed at the judicial declaration of paternity (as reclassified by the Court of Como) of two minors, born through the recourse to MAP techniques, in favour of the respondent. The latter had provided her male gamete, which had been cryopreserved prior to her sex change, for homologous fertilization together with her partner.

The provisions governing the conditions for the recognition of children born out of wedlock and for the judicial declaration of paternity and maternity are constituted by Articles 250 and 269 of the Civil Code.

In the absence of marriage – as the presumption of paternity under art. 231 of the Civil Code does not apply – the ascertainment of filiation occurs through a voluntary act (art. 250 of the Civil Code) or, in its absence, through a judicial ascertainment (art. 269 of the Civil Code).

In particular, as far as is relevant here, the declaration of paternity or maternity governed by art. 269 of the Civil Code is the instrument intended to guarantee the child born out of wedlock, who has not been spontaneously recognized, the right to nevertheless acquire the status of a child.

The referring court, instead, challenges Articles 5 and 12 of Law no. 40 of 2004.

These provisions concern the different aspect of access to MAP techniques, regulating, respectively, the subjective conditions for access and the sanctions established to safeguard the prohibitions provided therein.

4.2.– The Court of Como does not adequately address the overall legal framework in this matter.

Indeed, it raises questions of constitutional legitimacy on the erroneous assumption that the prohibition of access to MAP techniques for homosexual couples established by art. 5 (and secured by art. 12) of Law no. 40 of 2004 precludes the subject who, in the context of homologous fertilization, provided their male contribution to procreation and subsequently became female, from proceeding with the recognition of the daughters and, correlatively, from being a potential recipient of the relevant judicial declaration of paternity.

The subject of the request examined in the referring proceedings was the attribution of the status of child to the two minors already born. The judge, therefore, should have addressed solely the indications of the legislator regarding the prerequisites for accepting the judicial declaration of paternity.

However, the legal framework of the Civil Code, constituted by Articles 250 and 269 of the Civil Code, establishes as a necessary and sufficient prerequisite for accepting the request for judicial declaration of paternity the ascertainment of the biological link between parent and child. This is, moreover, reiterated by the Court of Cassation, which has consistently affirmed that "art. 269 C.C. […] attributes natural paternity based on the mere biological fact” (thus, ex multis, Court of Cassation, First Civil Section, order 13 December 2018, no. 32308).

Therefore, in order to accept the request for judicial declaration of paternity pursuant to art. 269 of the Civil Code, the Court was only required to ascertain the biological fact of the contribution to procreation (in this case, undisputed). The challenged legislation, relating to the different aspect of access to MAP techniques, could not have any obstructive significance.

Moreover, the event of the (subsequent) sex change of the person who contributed to procreation does not affect the existence of the biological link between parent and child (represented, in this case, by the provision of male gametes).

5.− For the reasons set forth above, the questions of constitutional legitimacy raised by the Court of Como must be declared inadmissible.

for these reasons

THE CONSTITUTIONAL COURT

declares inadmissible the questions of constitutional legitimacy of Articles 5 and 12, paragraphs 2, 9, and 10, of Law 19 February 2004, n. 40 (Provisions concerning Medically Assisted Procreation), raised, with reference to Articles 2, 3, 31, second paragraph, 32, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Articles 8 and 14 of the European Convention on Human Rights, Articles 2, paragraph 1, 17, 23, and 26 of the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on 16 December 1966 concerning the prohibition of discrimination and the right to respect for private and family life, and Articles 2, 3, and 9 of the UN Convention on the Rights of the Child, approved by the United Nations General Assembly on 20 November 1989, ratified and enacted by Law 27 May 1991, n. 176, by the Ordinary Court of Como, First Civil Section, in collegial composition, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 9 July 2025.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Igor DI BERNARDINI, Chancellor

Filed in the Registry on 23 October 2025

 

The anonymized version is textually compliant with the original