SAME-SEX COUPLES: CONSTITUTIONAL COURT RECOGNIZES COMPULSORY PATERNITY LEAVE FOR INTENDED MOTHERS
In response to a question submitted by the Court of Appeal of Brescia, in its ruling no. 115 of 21 July 2025, the Constitutional Court declared the constitutional illegitimacy of Article 27-bis of Legislative Decree 151/2001 (so-called Consolidated Law on Maternity and Paternity) in the part in which it recognizes compulsory paternity leave – equal to 10 days of leave from work paid at 100% – only to working fathers and not to working women who are the intentional parent in a female couple, both of whom are recognized as mothers by the Italian State, as they are registered in the civil registry.
According to the Court, this is because the unequal treatment, which is caused by the provision at stake, between heterosexual couples and couples composed of two women legally recognized as parents of a child born through medically assisted reproduction techniques carried out abroad in accordance with the laws of the country where the practice is carried out is “manifestly unreasonable”.
Following the Court's reasoning, sexual orientation does not affect the suitability to exercise parental responsibility, which involves the duty to fulfil obligations functional to the needs of the child.
As a result, the intentional mother, i.e. the member of the same-sex couple who did not give birth but who shared with the biological mother the commitment to care for and take responsibility for the child, needs to devote adequate time to this and is therefore entitled – on an equal footing with the father in heterosexual couples – to compulsory leave.
In light of the above, INPS shall now make its systems compliant with this ruling to allow also intentional mothers who are employees to apply for such a leave.
