Elena Ryolo
Cappelli Riolo Calderaro Crisostomo Del Din & Partners, Milan
elena.ryolo@crccdlex.com

Silvia Tozzoli
Cappelli Riolo Calderaro Crisostomo Del Din & Partners, Milan
silvia.tozzoli@crccdlex.com

Mohammad Shamal
Cappelli Riolo Calderaro Crisostomo Del Din & Partners, Milan
Mohammad.Shamal@crccdlex.com

The Italian Constitutional Court judgment No 115/2025,^[1] which was delivered on 21 July 2025, addresses a significant issue at the intersection of employment and family law, constitutional equality and social diversity: in same-sex female couples, the intentional mother must be recognised as being entitled to the same leave of absence that fathers are granted on the occasion of their child’s birth. The ruling challenges traditional definitions of parenthood and rejects exclusionary legal frameworks, embracing a more modern conception of family grounded in equality and dignity.

The background

The matter was brought to the attention of the Constitutional Court by a local labour court of appeals called to judge on a discrimination claim filed by Rete Lenfor, a pro LGBTQI+ association, in the interest of same-sex couples who qualify as parents in civil registers, against the Italian Social Security Administration (INPS), which refused to extend to non-biological mothers in same-sex couples the mandatory leave of absence which is available to fathers at the time of their child’s birth. The Italian General Confederation of Labour (CIGL), the main left-wind employees’ trade union, and the Italian government were part of the court proceedings.

Specifically, the local labour court deemed that Article 27-bis of Legislative Decree No 151/2001 (ie, the Italian Parental Rights Act)^[2] was in contrast with the principles of the Italian Constitution (in terms of equality and equal treatment in employment and labour conditions) in that it does not extend the mandatory fathers’ leave also to the woman who, within a female couple, does not physically give birth to the baby but nevertheless shares the same parental intention and responsibilities.

According to Article 27-bis, a father employee is entitled in the two months preceding, and in the five months following, the birth of the baby, to be absent from work for a period up to ten days while receiving 100 per cent of his salary from the Social Security Administration. The aim of this provision is to create a more equal distribution of parental responsibility and to establish a father–child bond. The father’s leave of absence can be used at the same time that the mother makes use of her own mandatory dedicated leave of absence.

The Court’s ruling and subsequent administrative guidelines

In its reasoning, the Court first of all reminds and confirms that:

• when recorded in civil status registers, the members of female same-sex couples formally acquire the legal status of parents;
• a birth certificate issued abroad can be recorded in Italy, since recognition of a parent–child relationship in the absence of a biological link is not contrary to international public order, provided that the ‘intentional mother’ has consented to the use by her partner of assisted reproductive techniques, even where such techniques are not authorised under Italian law;
• gender identity cannot justify less favourable treatment of parents, in the absence of elements that would conflict with public order, given the primary and fundamental need to safeguard the child’s best interests, which is a pervasive principle in the Italian legal system; and
• with judgment No 68 of 2025, the Constitutional Court has already acknowledged the status of child to a baby recognised also by the ‘intentional mother’ who, together with the partner giving birth, consented to a procreative practice.

Within this framework, sexual orientation does not affect the ability to assume parental responsibility. The child has an interest in having his or her status as the son or daughter of both parents legally recognised: the judgment in fact places particular emphasis on the child’s right to a stable relationship with both parents, regardless of the couple’s composition. To this end, both the biological mother and the intentional mother contribute equally to the child’s care and upbringing.

According to the above reasoning, Article 27-bis – as it is structured now and therefore intended for fathers only – is unconstitutional for violating Article 3 of the Constitution guaranteeing equal treatment.

The Court’s ruling is not only firmly anchored in Italian constitutional principles but also aligned with EU law, and specifically Directive 2000/78/EC establishing a general framework for equal treatment in employment,^[3] and Directive (EU) 2019/1158 on work–life balance for parents and carers.^[4] Both Directives support the conclusion that excluding the intentional mother from parental leave violates the principles of non-discrimination and equal treatment.

At the same time, the Court takes an important step towards acknowledging the lived and tangible realities of LGBTQ+ families, confirming that legal protections should reflect social diversity and evolving family compositions. By extending parental leave rights to the intentional mother, the judgment reduces a gap in protection and offers greater visibility to family forms previously marginalised. While this does not yet establish full equivalence between non-biological and biological parenthood across the legal system, it marks a concrete advance in mitigating uncertainty and fostering inclusion. The decision may thus serve as an initial reference point for future reforms aimed at strengthening the recognition and protection of diverse family units.

Following the judgment, on 7 August 2025 INPS issued Message No 2450^[5] to clarify administrative procedures to benefit from the leave of absence, thus ensuring immediate and practical enforceability of the Court’s decision.

Broad ramifications

The decision signals a possible paradigm shift in Italian family law, encouraging lawmakers and policymakers to revisit and modernise provisions relating to family, parenthood and labour rights. Moreover, it could make it possible for comprehensive reforms encompassing adoption rights, assisted reproduction and broader parental benefits for LGBTQI+ families.

At the same time, by foregrounding equality and diversity, the judgment resonates beyond Italy’s borders, contributing to the international discourse on inclusive family rights. It offers a compelling judicial model for jurisdictions grappling with similar issues of parental recognition and non-discrimination in family law.

Furthermore, the Court’s stance exemplifies progressive recognition of parental diversity in social order, encouraging other nations and international bodies to harmonise parental leave laws with contemporary family realities. It also supports advocacy for parental leave frameworks that accommodate all family forms, enhancing equality and work-life balance globally.

Nevertheless, the judgment also reveals unresolved issues. While it grants rights to the intentional mother in female couples, it does not indicate intentional fathers in male couples who resort to surrogacy, or cases involving step-child adoption. This selective scope risks creating new asymmetries and potential forms of discrimination, highlighting the need for further legal and legislative clarification. In this sense, the judgment should be viewed as a starting point rather than the final word in the broader recognition of intentional parenthood.

Conclusion

This judgment is a landmark affirmation of diversity and equality in family law and employment law. By recognising the intentional mother’s right to parental leave, the Court not only rectify discriminatory gaps. Yet, the ruling is confined to a limited context of ten days of paid leave by INPS and does not yet resolve the broader challenges of fully harmonising family law with the realities of LGBTQI+ parenthood. This decision marks progress and the beginning of a process toward inclusive legal frameworks that respect and protect all family structures and employees’ rights, contributing meaningfully to both national and international legal landscapes.

Finally, Italy has taken a great step toward implementing the true meaning of equality for all its nationals, confirming the principle that equal rights and protections must be extended to every family, regardless of its composition.