The intended mother in a female couple is entitled to paternity leave

MILAN – Even an intending mother is entitled to paternity leave . This is the ruling of the Constitutional Court, which, with ruling number 115, declared Article 27-bis of Legislative Decree number 151 of 2001 unconstitutional insofar as it does not grant mandatory paternity leave to a female worker who is the intending parent of a female couple registered as parents in the civil registry.

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The issue was raised by the Brescia Court of Appeal , which deemed discriminatory the provision that allows only the father to benefit from mandatory paternity leave, equal to 10 days of leave from work at 100% pay, thus excluding the "second mother" from the benefit, in the case in which the parental couple is made up of two women both recognized as mothers by the Italian State.

“The unequal treatment is unreasonable”

In its ruling, the Court deemed " the disparity in treatment between parental couples composed of people of different sexes and couples composed of two women recognized as the parents of a minor legitimately through medically assisted procreation techniques performed abroad in accordance with the lex loci" to be manifestly unreasonable.

The court observed that "by sharing a parenting project, they have assumed, like heterosexual couples, legal ownership of that bundle of duties functional to the needs of the minor that the legal system considers inextricably linked to the exercise of parental responsibility."

The child's best interests are always at the centre

And it is quite possible, he added, "to identify in female homoparental couples a figure comparable to the paternal figure within heterosexual couples, distinguishing between the biological mother and the intended mother, who has shared the commitment of care and responsibility towards the newborn and actively participates in it." Sexual orientation , the Council clarified, does not in itself affect the suitability to assume this responsibility .

The Court then recalls who should be the focus when discussing same-sex couples. "The right of a minor to maintain a relationship with both parents," the ruling notes, "is recognized in ordinary legislation (Articles 315-bis and 337-ter of the Civil Code) as well as by a series of international and European Union instruments." And "it is in the minor's best interests to have the status of child recognized by the biological mother, who gave birth to him, and by the intended mother, who have shared the responsibility of caring for him."