Recognition of the Intentional Mother's Child: The Impact of Ruling No. 15075 of 2025 on ART Abroad

Family law is constantly evolving, especially when faced with the new frontiers of medicine. Medically Assisted Reproduction (MAR), particularly heterologous MAR carried out abroad, has posed and continues to pose significant challenges to our legal system, especially regarding the recognition of a child's status in non-traditional couples. The Supreme Court of Cassation Ruling No. 15075 of 05/06/2025 offers an important interpretation of the evolution of jurisprudence, confirming an approach aimed at protecting the superior interest of the minor.

Law 40/2004 and its Evolutions

Law No. 40 of 2004 on Medically Assisted Reproduction has been, since its introduction, the subject of extensive debate and numerous interventions by the Constitutional Court. Created to regulate a complex matter, it has shown some rigidity over time, especially in relation to access to heterologous MAR techniques and the recognition of parentage in different family contexts. Article 8 of Law 40/2004, in particular, has been at the center of multiple constitutional legitimacy issues.

Originally, the law presented stringent limitations that prevented the recognition of parentage in cases of heterologous MAR, especially for same-sex couples. However, jurisprudence, and in particular the Constitutional Court, has progressively dismantled these barriers, recognizing the need to adapt the legislation to social reality and, above all, to ensure full protection of the rights of children born from such paths.

Ruling No. 15075/2025: A Firm Stance on the Intentional Mother

The ruling of the Supreme Court of Cassation, Ruling No. 15075 of 2025, addresses an emblematic case: that of a child born in Italy to an Italian mother, conceived abroad through heterologous MAR, within a female same-sex couple. The central issue was the recognition of the child's status also towards the "intentional mother," the one who, although not the biological mother, had consented to the fertilization procedure along with the gestational mother.

The Court of Cassation, presided over and reported by Dr. A. G., while rejecting the appeal, corrected the reasoning of the Court of Appeal of Brescia, which had interpretatively evolved Article 8 of Law 40/2004. This was because, prior to the specific declaration of unconstitutionality, such an extensive interpretation was not possible for the ordinary judge, due to the literal wording of the norm. The Court therefore reiterated the importance of the Constitutional Court's role in filling legislative gaps and adapting the law to constitutional principles.

In cases of conception abroad through the use of heterologous medically assisted reproduction techniques, desired by a female same-sex couple, the child born in Italy has the status of a child recognized also towards the intentional mother who, together with the biological mother, consented to the fertilization procedure, as a consequence of the declaration of unconstitutionality of Article 8 of Law No. 40 of 2004, with ruling No. 68 of 2025. The ordinary judge, prior to this ruling, could not recognize the parentage of the intentional mother through an evolutionary interpretation, precluded by the literal wording of Article 8 of the aforementioned Law 40.

This maxim crystallizes a fundamental principle: the recognition of the intentional mother's parentage is not the result of a free interpretation by the ordinary judge, but stems directly from the declaration of unconstitutionality of Article 8 of Law No. 40 of 2004, which occurred with Ruling No. 68 of 2025 by the Constitutional Court. It is the Constitutional Court that paved the way, removing a legislative obstacle that prevented the full recognition of the parental bond. This highlights how the protection of the "best interest of the child" has become the guiding light of jurisprudence, guaranteeing the child's right to have a legal bond with both parents who desired and cared for them, regardless of their sexual orientation or the method of conception, provided it was lawful in the place of practice.

Implications for Families and Child Protection

The consequences of this jurisprudential orientation are far-reaching. They directly affect the lives of numerous families and, above all, ensure the full protection of the rights of the minors involved. Key points include:

• Recognition of Child Status: A child born from heterologous MAR abroad, within a female same-sex couple, has the right to be recognized by both mothers, the biological one and the intentional one.
• Superior Interest of the Minor: Jurisprudence reiterates that the minor's interest in having a certain and complete legal status prevails over legislative restrictions. This principle is also enshrined at the constitutional level (Art. 2 of the Constitution) and in international conventions, such as Article 8 of the ECHR, which protects the right to respect for private and family life.
• Non-discrimination: The orientation contributes to overcoming forms of discrimination based on parents' sexual orientation, ensuring that all children have equal rights, regardless of their family composition.

The Court of Cassation, while rejecting the appeal, corrected the reasoning of the Court of Appeal of Brescia, emphasizing that the recognition of the intentional mother's parentage cannot derive from a "creative" interpretation by the ordinary judge, but must be based on a solid legal premise, such as the declaration of unconstitutionality. This reiterates the hierarchy of sources and the need for legislative or constitutional intervention for such profound changes.

Conclusions and Future Prospects

Ruling No. 15075 of 2025 represents an important piece in the mosaic of filiation and family law. It confirms the commitment of Italian jurisprudence to protecting the rights of minors and recognizing the plurality of family structures emerging in contemporary society. Legislative evolution, often guided by the interventions of the Constitutional Court, aims to ensure that no child is deprived of their right to have a legal bond with those who desired and are raising them, overcoming old conceptions and adapting to new realities. For couples undertaking MAR abroad, this ruling offers greater clarity and legal certainty, while also highlighting the complexity of a system that still requires full harmonization between law and scientific and social progress. In such cases, it is essential to seek specialized legal advice to navigate the complexities of private international law and family law.