eurel     Données sociologiques et juridiques sur la religion en Europe et au-delà


  • February 2016 : Italy’s Senate Approved Civil Union for Same-Sex Couples

After years of political battles led by gay people movements, Italy’s Senate approved in February 2016 the first law granting legal recognition to same-sex unions. The bill still has to pass in the lower Chamber of deputies, but the February 2016 passage was the toughest hurdle. As approved by the Senate, the bill grants same-sex couples rights similar to those of other married couples, including mutual financial and moral support, sharing a last name and a common home address, as well as some inheritance and pension rights (see Atto Senato n. 2081). Yet, one should underline that the passage in Italy’s Senate stopped short of giving the same-sex couples the right to stepchild adoption. The paring of the adoption provision was in fact crucial to this passage, where the bill faced enough resistance that Prime Minister, Matteo Renzi, tied its fate to a confidence vote on his government, which passed handily, 173 to 71.
The bill grants some civil rights to unmarried couples, who have historically been largely ignored under current legislation. It remains, though, that the provision in the legislation that would have granted the “stepchild” adoption – that means granting some parental rights to the non-biological parents in same-sex unions – was removed from the legislation following a parliamentary agreement between Renzi’s Democratic Party (PD) and his coalition partners, the New Centre Right (NCD). Another provision, that addressed the requirement for “faithfulness” in the relationship was also erased from the bill, after conservatives complained that the language tried to mimic marriage vows.
The author of the original bill, senator Monica Cirinnà, said that, “this is a first step, a victory with a hole in the heart. This is a very important law, but I also think of the children of so many friends. Now we have to take a second step ; we are halfway up the stairs”. On the other hand, the minister of the Interior and the NCD leader, Angelino Alfano, who led the charge against the stepchild provision but ultimately backed passage of the law, emerged as a clear political victor in the bruising battle over the legislation. “We have blocked a revolution that would have been against nature and anthropology”, he said during an interview. Alfano, and all those who were against the stepchild adoption, argued that this way of adopting children would have opened the doors to the surrogacy, that is an agreement (legally recognised in some western countries, but banned in Italy) though which couples, including the same-sex ones, may have a child via a surrogate mother (see Rainews, Unioni civili, Alfano : "abbiamo impedito una rivoluzione contro natura").
The day before the bill was approved by Italy’s Senate, both the Prefect of the Congregation for the Doctrine of the Faith, Cardinal Gerhard Müller, and the Vatican’s Secretary of State, Cardinal Pietro Parolin, affirmed that same-sex unions could never be considered equivalent to marriage. Speaking at a Rome conference, Cardinal Müller warned that politicians must not “impose a false ideology”. Pope Francis did not intervene directly in the debate, but Catholic politicians mounted a furious campaign against the adoption clause, arguing that children need a mother and a father.
At the same time, a movement of 28 Italian LGBT groups denounced the bill as a sellout : “we didn’t wait 30 years for this”, they said. Activists staged a noisy demonstration outside the Senate and vowed further protests. The head of a gay rights group called Arcigay said that, “we heard some horrible speeches in the Senate about genetically modified children during the debates”.
In this sense, it is important to remember what the Italian Courts established in some of their decisions concerning the stepchild adoption. One of these decisions is about the custody right of an Italian woman who has given birth to a child while in a relationship with a man. After this connection broke down, the woman established a relationship with another woman. At this point, the natural father claimed exclusive custody of his son, affirming that the women’s lesbian relationship was harmful to the child and that, constitutionally speaking, the same-sex couple could not be qualified as family. According to his own words, the Italian Constitution protects the “natural family and marriage in the traditional sense of the terms”. Nevertheless, the Italian Court of Cassation did not accept this reasoning. First, the Court qualified same-sex relationship as “a family centred on a homosexual couple”. Then they examined whether such a family context was harmful to the child. Finally, the Court affirmed that those claims “are not based on science or experience, but on the mere prejudice that living in a family centred on a homosexual couple is harmful to the child’s healthy development” (see Corte di Cassazione, sez. I civile, sentenza dell’11 gennaio 2013 n. 601).
Based on this same viewpoint, the Juvenile Court (Tribunale per i Minorenni) of Rome granted permission on 30 July 2014, for the first time in Italian history, for the adoption of a child living with a lesbian couple. The case was about a five years old girl who was conceived in a European country with assisted fertilization. The two women were married abroad and, as seen above, this marriage could be recognized in Italy. Nevertheless, the non-biological parent was allowed to adopt the child, under the clause stated in Article 44(1-d) of 1983 Italy’s adoption Act (no. 184), as amended by the 2001 Act (no. 149). The clause authorizes adoption in particular cases, prioritising the best interest of the child in order to maintain the emotional relationship and cohabitation with the ‘social parent’, such as a person other than a biological mother or father who has raised the child. As a result, along with the need of the child to maintain a relationship with both women and not only with the biological mother, the Italian Court considered the lesbian couple as a family, whose members cannot be discriminated in relation to their sexual orientation. As Italian Constitutional Court had stated in the famous 2010 judgment (no. 138), two women involved in a same-sex relationship “are held to have the right to freely live in couple (vivere liberamente la propria condizione di coppia)”. This, according to the Juvenile Court of Rome, implies the right to have biological or adopted children (see Tribunale per i Minorenni di Roma, sent. 299/2014, 30 luglio 2014.)
In more general terms, this juridical approach means that if the ordinary judges apply Article 44 of Italy’s adoption Act in such a way that the same-sex couples are excluded from the adoption because of their sexual orientation, this interpretation would be considered in contradiction with Article 2 (devoted to the inviolable rights of the person, as an individual and in the social groups, including de facto same-sex couples) of the Italian Constitution (see. F. Alicino, The Road to Equality. Same-Sex Relationship within the European Context : The Case of Italy).

Francesco Alicino
  • January 2016 : Reforms of the Catholic Church Law in Marital Nullity Trials

Pope Francis recently enacted the acts regulating the new abbreviated procedure for the nullity of marriage cases. While a juridical process is needed for making accurate judgments, the canonical marriage annulment process must be quicker, cheaper and much more of a pastoral ministry. These reforms have been in particular formalized by two papal documents, Mitis Iudex Dominus Iesus (The Lord Jesus, the Gentle Judge) for the Latin-rite church and Mitis et misericors Iesus (The Meek and Merciful Jesus) for the Eastern Catholic churches. In practice, these documents are not intended for promoting the nullity of marriages, but the quickness of the processes, as well as a correct simplicity of the procedures, so that Catholic couples are not oppressed by the shadow of doubt for prolonged periods.
Nevertheless, these acts raise a variety of questions concerning the civil effects of the ecclesiastical judgement affirming the nullity of a marriage, under Article 8 (section 2) of the 1984 Italian Concordat between the Holy See and the Italian Republic. The papal documents seem to affirm a sort of voluntary jurisdiction, similarly to dispensation from valid (non consummated) marriage. That can have some important impacts in respect to the so-called “delibazione”, the procedure through which the effects of a canonical judgment are recognised within the Italian civil order – as established by Article 8.2 of the 1984 Concordat (see Nicola Colainni, Il giusto processo di delibazione e le “nuove” sentenze ecclesiastiche di nullità matrimoniale).

Read the full article by Vera Valente.

Vera Valente

D 24 mars 2016    AFrancesco Alicino AVera Valente

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