WIth sentence 115/2025, the Constitutional Court of Italy declared Article 27-bis of Legislative Decree no. 151 of 26 March 2001 unconstitutional, as it violates Article 3 (principles of equal treatment) of the Italian Constitution, because it does not recognise compulsory paternity leave for a female worker who is an intended parent in a female couple who are listed as parents in the civil status registers. 

This is what the Court has decided with sentence number 115, deposited 21 July 2025. The question of constitutionality was raised by the Court of Appeal of Brescia, which argued that Article 27-bis was discriminatory, which only allows the father to enjoy compulsory paternity leave, for 10 days of absence from work paid at 100%, thus excluding the benefit of the “second mother”, in the case where the couple of parents is formed by two recognized women both registered in the registers of the civil state as mothers.

As foreseen in Article 27-bis of Legislative Decree no. 151, parents' duties are equal and fully interchangeable, therefore the Court noted that the non-biological mother, as the “second parent” in a female couple, and the “father” in a mixed couple share equally responsibilities and duties of caring for a minor child, and the rights deriving from them, taking into account gender. In addition, the Court reasons that the emergence of the rules governing maternity leave and daily rest periods for female workers was not only to protect women's rights but also to guarantee the protection of the primary interests of the child.

Following the Italian Constitutional Court’s practice, in particular its decision no. 33 of 2021, the Court confirmed that sexual orientation does not in itself affect the child’s suitability to assume such responsibility. And since Article 31(2) of the Italian Constitution protects the child’s best interests, the Court confirmed that the recognition of the bond, care, and affection between both mothers and a child is more important than the existence of the biological link.

The Court claimed that even though the Italian legislation system (Law No. 40/2004) sets restrictions on assisted reproduction, these limitations do not prevent Italy from recognising the legal effects of foreign acts, such as transcribing a foreign birth certificate, when consistent with Italian legal principles. In decision no. 68 of 2025, the Constitutional Court upheld the recognition of kinship between a child born via heterologous assisted fertilisation abroad and both women who consented to the procedure, including the so-called intended mother.

The Court held that when the parental status of both parents in a same-sex couple is legally established in Italian civil records, they are recognised as equal under Italian and International law. Therefore, the exclusion of the non-biological mother from paternity leave violated the principles of equality and the rights of the child.