Social parenthood is an ancient phenomenon but of renewed interest to scholars in many fields. It is considered as filiation or parenthood, depending on the reference legal system, based on the voluntary and conscious assumption of procreative and parental responsibility towards a child, even if it has no genetic, biological or gestational ties with the adult. This “umbrella term” includes both functional parenting and intentional parenting.

Functional or de facto parenthood involves all those cases in which the exercise of care and assistance towards the child takes on a constitutive role. These include, for instance, those situations in which the child is assisted by grandparents, who assist or even replace those who detain parental responsibility, or of cases of kafala, in which children born out of wedlock cannot be adopted in systems that have only the paradigm of legitimate filiation but are taken in by an adult into their own family within a sort of foster care for assistance, education and maintenance.

In intentional or intended parenthood, on the other hand, the manifestation of consent, understood as a declaration of willingness to initiate adoption proceedings or as the manifestation of a willingness to authorise medical treatment for artificial insemination or median hypotheses between those just mentioned, plays an essential role. This second category includes hypotheses arising from homologous fertilisation, heterologous fertilisation, embryo-exchange, post-mortem or posthumous procreation or even perimortem procreation, embryo-sharing or adoption, and surrogacy. Not all the cases listed are allowed in European legal systems, including Italy's, so it is necessary to verify the compatibility of self-determination with the requirements for access to procedures.

Among the above-mentioned cases, besides the lack of a shared genetic heritage between the child and the adult, the parenthood-oriented self-determination manifested by the adult, albeit within a minor-centred perspective, aimed at enhancing the child’s pre-eminent interest in concrete terms, is also important.

It was precisely on parenthood-oriented self-determination that the Constitutional Court recently pronounced its decision on the declaratory judgement of the constitutionality of the provisions on the international adoption of foreign children by single persons.

In Judgement No. 33 of 21 March 2025, the Constitutional Court declared that Article 29-bis, paragraph 1, of Law No. 184 of 1983 was unconstitutional in so far as, in conjunction with Article 6, it excluded the possibility for single persons to adopt foreign children through the intercountry adoption procedure. The decision under comment is based on several arguments that are distilled as follows.

Considering the subjective requirements for access and the factors considered by the judge, in assessing the suitability of persons seeking access to intercountry adoptions governed by Italian law, it is noted that even single persons can offer a stable and harmonious environment for the growth of a child. Married couples of different genders are not necessarily the only ones who are suitable according to the Italian legal system as a whole; they cannot be considered suitable ex se and there is no scientific data to prove that single persons cannot offer a suitable environment. Next, the Constitutional Court dwells on self-determination, i.e. the freedom to make choices. This is not an absolute right but is subject to limits, especially when it is oriented towards the determination of parenthood. Nevertheless, such limits cannot be unlimited, configuring automatisms, unless they are placed to safeguard interests of constitutional rank.

Further, the Court considers that, for adoptions and within a perspective devoted to the best interests of the child, the optimal solution in practice must be considered. Thus, the family network of reference, i.e. the extended family surrounding the adoptive parent and not just the nuclear family, is also relevant.

Finally, it is pointed out that the regulation of adoptions is not bound by the principle of imitatio naturae.

Prominent among the arguments expounded by the Constitutional Court is the role attributed to self-determination, previously devalued by Italian jurisprudence, as occurred in the case concerning the recognition of foreign acts and judgments relating to filiation by surrogacy and artificial procreation carried out abroad with birth in Italy.

Taking its cue from the rulings of the European High Courts and the precedents of the Constitutional Court on filiation, adoption and artificial procreation, the Constitutional Court states that the choice to become parents and to form a family, that also has children, constitutes an expression of self-determination. This right is traceable to Articles 2, 3 and 31 of the Constitution, since it concerns the private and family sphere, referred to in Article 8 ECHR.

When parenthood is accessible, either because of physiological conditions or because the person has the subjective requirements of national provisions permitting medically assisted procreation or adoption, the freedom to self-determine in the choice oriented towards parenthood implies a claim not to have that freedom unduly restricted by the legislation Restrictions could be provided, however these restrictions must then be reasonable and proportionate, while automatisms are not allowed, such as the one that precludes individuals from adopting foreign children.

The concept of self-determination referred to by the Constitutional Court emancipates itself from the therapeutic dimension of Articles 2, 13 and 32 of the Constitution, to which, however, the legislature seems to be bound in the regulations on medically assisted procreation. Parenthood-oriented self-determination, on the other hand, is based on the notion of private and family life referred to in the two paragraphs of Article 8 ECHR, which also includes the right to personal fulfilment and the right to respect for the decision to become a parent or not.

 

(Focus by Stefania Pia Perrino)

 

Selected bibliography: 

 

T. Auletta, L’incidenza dell’interesse del minore nella costituzione o rimozione dello stato filiale, in M. Bianca(a cura di), The Best Interest of the Child, La Sapienza Università Editrice, Roma, 2021, 523-610

M. Caldironi-S.P. Perrino (a cura di), The Family (R)evolution, Mucchi Editore, Modena, 2025

 

A.R. Favaretto-C. Scivoletto, Genitorialità sociale affidataria e continuità dei legami affettivi, in Sociologia del Diritto, 2020, 1, 131-152

 

L. Giacomelli, Tutela dei minori e pragmatismo dei giudici: verso il riconoscimento delle «nuove» forme di filiazione e genitorialità, in Osservatorio AIC, 2018, 3, 551-587

 

A. Gorgoni, La filiazione, Torino, 2018

 

G. Iorio, Le adozioni “in casi particolari”: through the barricades, in G. La Rocca, E.
Bilotti, V. Piccinini (a cura di), Le relazioni giuridiche familiari tra natura e storia. Prospettive culturali e questioni aperte, Giappichelli, Torino, 2024, 119-133

 

G. Iorio, Le adozioni in Italia fra diritto vivente e prospettive di riforma, in Familia, 2022, 4, 493-511

 

I.L. Nocera, Adopción cn Casos Especiales y Unidad del Status Filiationis en el Derecho Italiano: ¿Cómo Repercute en el Plano Sucesorio?, in Actualidad Juridica Iberoamericana, 2022, 2, 2310-2353

 

F. Pedrini (a cura di), The JUSTPARENT Handbook, Mucchi Editore, Modena, 2024

 

S.P. Perrino, “If you are a parent in one country you are a parent in every country”: is it true for social parenthood?, in Papers di Diritto Europeo, 2023, special issue, 209-228

 

V. Piccinini, La legge sulla procreazione medicalmente assistita di nuovo al vaglio della Corte costituzionale. Nuove soluzioni per vecchi problemi?, in Familia, 2025, 2, 1-23