The “Law in Context” for (Stepchild) Adoption in Same-Sex Couples: The Italian Models

Abstract

This essay focuses on a recent development in Italian family law with respect to stepchild adoption in cases involving same-sex couples. Resorting to arguments of both the continuity of the affective relationship and the best interests of the child, courts have been willing to permit adoptions in these cases under Article 44 of L. 184/1983 (“Adoption Act”), which provides for “adoption in particular cases” (“APC”). This article provides a special (not exceptional) tool, that, at the time it was drafted, was not contemplated for stepchild adoption by a parent’s same-sex partner, but could be adapted for such situations. This has remained the case even after the legislative choice not to grant stepchild adoption to the partners of unioni civili (L. 76/2016, “Civil Partnership Act”). The starting point for analysis of this recent trend must be the Adoption Act, moving on to the reform of filiation (2012) and the law on the continuity of the affective relationship (2015), to the Civil Partnership Act (2016) and to the emerging trend in court rulings on stepchild adoption in same-sex couples. In particular the essay focuses on leading decisions of the Italian Constitutional Court and the Corte di Cassazione, with some comparative insights to other legal experience in different legal systems.