Italy Has Taken A Great Step Forward for LGBT Parental Rights

 (AF*File pic) A Gay Couple in Dublin

Although Italy may be the international capital for art, it isn’t anywhere close to being the international capital for ART law. That is, assisted reproductive technology (ART). Use of assisted reproductive technology like in vitro fertilization (IVF) and surrogacy is highly regulated, and it is reserved only for those in “stable heterosexual relationships.” I’m not sure many of […]

Although Italy may be the international capital for art, it isn’t anywhere close to being the international capital for ART law. That is, assisted reproductive technology (ART). Use of assisted reproductive technology like in vitro fertilization (IVF) and surrogacy is highly regulated, and it is reserved only for those in “stable heterosexual relationships.” I’m not sure many of us, regardless of sexual orientation, can confidently claim that status.

In any event, despite the typical Italian skepticism toward ART, last week there was news that a same-sex female couple was permitted to register their donor-conceived son to both women as parents. This was an exciting first!

The backstory, like many stories in this area, involves a lot of hard work and legal hurdles. In this case, Chiara Foglietta and Micaela Ghisleni wanted to start a family together. As Italian citizens, they are unable to legally marry in their home country. Since 2016, however, Italy has at least allowed couples like Figlietta and Ghisleni to register as civil partners. Nevertheless, Italian law still prohibits them from utilizing assisted reproductive technology procedures, such as intrauterine insemination (IUI) or IVF with the use of donor sperm. Of course, as a same-sex couple, they had plenty of eggs and even an extra uterus between them. But they lacked for that one essential element.

Undeterred, the couple traveled to Denmark, where sperm donation is permitted. There, the couple was able to successfully get pregnant. On April 13, 2018, Foglietta and Ghislain's baby boy, Niccolo Pietro was born.

Foglietta—who also happens to be an elected public official in Turin—was initially advised that she ought to say that her child was conceived through sex with a man, in order for Italy to recognize her as the mother of the child. And although checking the box is the white lie that many Italian couples take when using assisted reproductive technology (either gay, heterosexual but unstably coupled, or using donor gametes), Foglietta refused. She said “I need to make this stand not for me, but for Niccolò, for all Rainbow children, for families who do not have the same strength to face these battles, for the children of single women and those with partners who have chosen medically assisted procreation with external donors and want to tell the truth,” she said.

Fortunately, Turin’s mayor, Chiara Appendino, joined the new parents in their political stand, and personally signed the birth certificates. In fact, not only did the mayor sign the birth certificate of baby Niccolo, recognizing both Foglietta and Ghisleni as his parents, she also signed three other birth certificates — one for a similarly situated same-sex female couple with a son, and two others for twin boys with two fathers. On Twitter, Appendino wrote: “Today is one of the days when every drop of energy put into politics feels worth it.” 

Italian attorney Alexander Schuster explained, “We made arguments that eventually persuaded a mayor (who in Italy is equivalent to a US registrar for establishing parentage on a birth certificate). However, we are truly diving into unchartered waters. I am confident we are entitled to judicial backing: if a cohabiting man consents to insemination, he is a legal parent. This ought to also be true if the partner is a woman. Denying the same protection to the child is outright discrimination.”

Birth certificate law in the US is also complicated. As everyone knows, the Supreme Court’s 2015 ruling in Obergefell means that same same-sex marriage is legal in every US state and territory. Further, last year, the Court clarified in its decision in Pavan that same-sex couples are also entitled to the “constellation of benefits” that comes with marriage. Such as the right to nag your partner to take out the trash. Or, more importantly, for the non-biologically related parent to be recognized as a legal parent when the couple uses the help of assisted reproductive technology.

Of course, there remain some hiccups still. Just last month, the Mississippi Supreme Court had to overturn an intermediate appellate court ruling that an anonymous sperm donor had greater parental rights to a child than the non-biological lesbian mom that raised him. Not great. Similarly, even though a same-sex spouse can automatically go on the birth certificate of a baby in most jurisdictions, that birth certificate (and non-bio mom’s parental rights) are not always immediately recognized by other jurisdictions.

[[Above The Law]]