The Italian Constitutional Court Self-Presents a Question of Constitutional Legitimacy and Challenges the Legal Framework on the Surname Attribution

—Giacomo Giorgini Pignatiello, PhD student in Comparative Public Law, University of Siena.

In February 2019, the Italian Constitutional Court (hereinafter ICC) issued a rather unusual order self-presenting the question on the constitutional legitimacy of the domestic legislation which establishes that, when the consent of both parents is lacking, only the father’s surname gets attributed to the child.

The technique adopted by the ICC in this occasion is very rare. In the 65 years of its activity the ICC issued only a very limited number of this typology of orders.[1] By doing so, the ICC overcame the constitutional principle limiting the scope of the decisions to the questions presented by an ordinary court in the incidental proceeding, which challenged the disposition of the Civil Code impeding parents to give to their child only the mother’s surname despite their mutual consent. Specifically, the Tribunal of Bolzano order maintained that such preclusion violates the right to the child’s personal identity.^[2] According to this view, the child would not be entitled to be socially recognised by the mother’s surname and consequently would be deprived of its symbolic value.

The Court considered that to decide the question raised by the ordinary court, the general rule establishing the attribution of the father’s surname when the consent of both parents is lacking has to be set. According to the ICC, this rule would be discriminatory on the ground of sex, since women are not recognised the same rights of men when it comes to the attribution of the surname.^[3] For the same reason equality between spouses, specifically protected by art. 29 of the Constitution, would be infringed as well.^[4] Several international and supranational legal sources, binding for the Italian legislator by virtue of art. 117, para. 1, of the Constitution, would also be violated according to the ICC.^[5] This is particularly the case of the Convention on the Elimination of All Forms of Discrimination against Women, ^[6] the European Convention of Human Rights (ECHR), ^[7] and the Charter of Fundamental Rights of the European Union (CFREU). ^[8]

This rare measure adopted by the ICC is the result of a long list of warnings addressed towards the legislature that went unheard. In 1988, the ICC issued two orders in which it maintained that the right to personal identity implied only the right to have a surname. ^[9] Therefore, the child’s personal identity was properly safeguarded when the surname was attributed according to the rules established in the legal framework of reference. However, it also observed that the adoption of a different criterion would have been not only possible but also in line with the development of society. Nonetheless, since this would have entailed a political choice, it would have fallen outside the scope of its powers. Consequently, it stated that only parliament was entitled to reform that piece of legislation.

            Almost 20 years later, in 2006, the ICC recognised for the first time ever that the Italian legal framework for the attribution of the surname was the product of both a patriarchal conception of the family and of an outdated marital power that are no longer consistent with the values enshrined in the Constitution. Moreover, it affirmed that the State could not ignore the legal obligations for gender equality deriving from the international treaties that Italy signed. Notwithstanding this diagnosis, the ICC stated that the reconstruction of the constitutional legality would have entailed a manipulative operation that would have gone beyond its powers. Therefore, the case was dismissed with the admonishment to the parliament to reform the legislation on the surname transmission urgently.^[10] 

            Then, in 2014 the European Court of Human Rights found in the case Cusan and Fazzo v. Italy that the Italian legislation interfered with the respect of private and family life (art. 8) and that it was discriminatory on the ground of sex (art. 14). Eventually, it prescribed Italy to provide, in case of parents’ consent, for the possibility of also assigning the mother’s surname.   

            In 2016, the ICC declared the partial unconstitutionality of the rules for the attribution of the surname to the child.^[11] The legal framework was deemed unconstitutional in so far as the law did not allow the parents to also add the mother’s surname in case of mutual consent. This decision was clearly not sufficient to fill the gap between the spouses’ rights. As a result of the 2016 judgment, today the mother’s surname can be added after the father’s one, only with the consent of both parents. Otherwise, only the father’s surname is transmitted to the child. Still no legal provision regulates what surname(s) shall be attributed to the children born by parents who have both their father’s and mother’s surname.

The inertia of the legislator explains why the ICC had to take the unusual decision to self-present the question on the general rule about surname, thirty-three years after its first decision on this subject. As it is a self-presented question, it is obvious that it will end up in a decision of unconstitutionality. Whether the ICC will decide to issue an order of ‘delayed unconstitutionality’^[12] to give the parliament one last chance to legislate on the matter within a specific amount of time, is unforeseeable. On the contrary, it is evident that the inertia of the Italian parliament when it comes to fundamental rights prevents the development of the transformative project designed by the Italian Constitution. Therefore, one might wonder to what extent the ICC is entitled to remedy legislative omissions without undermining the system of checks and balances. 

Suggested citation: Giacomo Giorgini Pignatiello, The Italian Constitutional Court Self-Presents a Question of Constitutional Legitimacy and Challenges the Legal Framework on the Surname Attribution, Int’l J. Const. L. Blog, July 7, 2021 at: http://www.iconnectblog.com/2021/07/the-italian-constitutional-court-self-presents-a-question-of-constitutional-legitimacy-and-challenges-the-legal-framework-on-the-surname-attribution

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[1] Elena Malfatti, Saulle Panizza, Roberto Romboli, Giustizia costituzionale, Giappichelli, 2018, 6 ed., 88.

^[2] The right to personal identity was interpretatively derived by the ICC from the general clause enshrined in art. 2 of the Constitution: ‘The Republic shall recognise and protect the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.’ (See in particular: ICC, decisions no. 297/1996, 120/2001, and 268/2002).

^[3] In violation of art. 3 of the Constitution, which states: ‘All citizens shall have equal social dignity and shall be equal before the law, without distinction of gender, race, language, religion, political opinion, personal and social conditions./It shall be the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.’

^[4] Art. 29 para. 2 of the Constitution provides that: ‘Marriage shall be based on the moral and legal equality of the spouses within the limits laid down by law to ensure family unity.’

^[5] Art. 117, para. 1 of the Constitution affirms that: ‘Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations.’

^[6] Art. 16, para. 1, lett. g) of the Convention maintains that States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: ‘The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation.’

^[7] ECtHR, Cusan and Fazzo v. Italy (App. no. 77/07), 7.1.2014. 

^[8] Art. 7 CFREU safeguards the ‘Respect for private and family life’. Art. 21 CFREU sets the principle of non-discrimination, including that based on the ground of sex. 

^[9] ICC, orders no. 176 and 586/1988.

^[10] ICC, decision no. 61/2006.

^[11] ICC, decision no. 286/2016.

^[12] Vittoria Barsotti et al., Italian Constitutional Justice in Global Context, Oxford University Press, 2015, in part. 67-91.