The Constitutional Court has on 8 November 2016 taken up the question of constitutional legislation raised by the Genoese Court of Appeal, declaring the constitutional illegitimacy of a “implicit” norm of our legal system and giving a decisive turning point in an extremely controversial issue, the possibility for parents of the attribution of the maternal surname to children.
The appeal is originated by a couple, Italian father and Brazilian mother, who had opposed to the refusal of the bailiff to add the mother’s surname to the father’s for their child born in 2012, who owns, amongst the rest, dual Italian-Brazilian citizenship.
This matter is very much felt in Latin American countries, where children often take the surname of both father and mother. Brazilian and Argentine citizens, including those residing from long time in Italy, are struggling to understand the reason for a rule that sees the automatic attribution of the paternal surname.
Beyond the cultural aspect, it should be noted that the rule does not have an expressed legal foundation: in fact it is not ratified by a specific norm, but derives from different regulatory measures, like in some articles of the Civil Code, by a Royal Decree of 1939 and from a Presidential Decree of 2000, that practically arrange the automatic assignment of paternal surname for legitimate children born in wedlock, even if there is a different wish from the parents.
There is also a bill aimed to enshrine the opportunity for children to have both last names, approved by the Chamber of Deputies in 2014, but it had been blocked in the Senate for two years. The only way, thus far , in order to obtain the double surname is to make a request to the Prefect, as is done, for example, when the own surname is ridiculous or offensive. But the concession is precisely, at the discretion of the Prefecture.
The decision, of which is still awaiting the filing of the explanation of the judgment, represents an important step forward in the recognition of a fundamental right also protected by European Union and so far, inexplicably ignored by the Italian law.