Procedural Posture

The plaintiff appealed to the Youth Court to have the adoption of his child recognised by the Italian authorities.

Facts

The plaintiff, an Italian citizen, married his partner in Massachusetts, which recognises same-sex marriages. The couple adopted a child in Massachusetts and then applied to have the adoption recognised in Italy.

Issue

Whether recognition of the foreign adoption was manifestly contrary to public order and should therefore be denied.

Domestic Law

Law 184/83, Article 36, Paragraph IV.

Reasoning of the Court

The Court examined the relevant Italian legislation concerning the recognition of foreign adoption and noted that recognition could only be refused in cases where it was manifestly contrary to public order, taking into account the best interest of the child.

Next the Court reviewed the facts and noted that in the present case the adoption had been granted to a same-sex couple. It was therefore necessary to consider whether this kind of adoption was contrary to public order. If that was the case, Law 184/83 authorised the Court to refuse to recognise the adoption.

According to the Court, “public order” referred to those principles of the legal order whose violation would cause a serious breach of the peace and would clash with the ethical values of society.

The Court affirmed that the concept of public order evolved over time as ethical values and mores changed. It noted that de facto families were increasingly common in the country; and that the merits of permitting unmarried couples or single persons to adopt children had been the subject of debate. However, adoption by same-sex couples had not been considered in the same way as adoption by unmarried opposite-sex couples or individuals.

The Court concluded that recognising a parental relationship between a same-sex couple and a child was contrary to the fundamental ethical and social principles of the State. Recognition of the adoption was therefore denied.

Decree of 26 September 2006, Brescia Youth Court, Italy – Italian (full text of judgment in Italian, PDF)