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Constitutional Court: to children the surname of both parents

There comes a right that Italian women have been waiting for for decades. The Court presided over by Giuliano Amato ruled that all the rules that automatically attribute the father’s surname to the children are illegitimate. On the basis of this sentence, the rule leads to the attribution of the surname of both parents in the order they choose, but also only one of the two, based on their decision.

So far thearticle 262 of the civil code it automatically attributed the surname of the father: «The child takes the surname of the parent who first recognized him. If the recognition was made by both parents at the same time, the child takes the father’s surname “. For more than a year the Court had been dealing with the matter starting from the case of a couple from Bolzano who wanted to give their child, born out of wedlock, the maternal surname.

This explains the Court: “The rule becomes that the child takes the surname of both parents in the order agreed by them, unless they decide, by mutual agreement, to attribute only the surname of one of the two. In the absence of agreement on the order of attribution of the surname of both parents, the intervention of the judge in accordance with the provisions of the legal system remains unaffected “.

All the rules that provide for the automatic attribution of the father’s surname, “with reference to children born in marriage, out of wedlock and adopted children” become illegitimate. It will then be up to the legislator regulate all aspects related to the decision.

For the Court, the rule that automatically assigns the father’s surname is discriminatory and detrimental to the identity of the child. “In the wake of the principle of equality and in the interest of the child, both parents must be able to share the choice on his surname, which constitutes a fundamental element of personal identity “. Already in 2006 the Court had said that the only paternal surname is the legacy of a patriarchal conception of the family and of a waning marital authority, no longer consistent with the constitutional value of equality between men and women, urging parliament to change the rules. The 2016 ruling on the possibility of a double surname.

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Source: Vanity Fair

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