JUDGMENT NO. 286 YEAR 2016
In this case the Court heard a reference concerning the legal rule that every childmust be attributed it's father's surname only at birth, and cannot be attributed
also the mother's surname, even if so requested by both parents. Referring to thecase law of the European Court of Human Rights, the Court struck down thelegislation with particular reference to the right to personal identity. “In order toachieve the full and effective realisation of the right to personal identity, which has
its primary and most immediate expression in the name, along with the recognitionof equal significance to both parents within the process of constructing that
personal identity, the child’s right to be identified from birth by the surname ofboth parents must be recognised. Conversely, the provision for absolute priority to
the father’s surname sacrifices the child’s right to identity, denying him or her theability to be identified from birth also by the mother’s surname.” The Court also
found the rule unconstitutional on the grounds that it violated the principle ofequality between husband and wife.
[omitted]
THE CONSTITUTIONAL COURT[omitted]
gives the following
JUDGMENTin proceedings concerning the constitutionality of the rule which may be inferred from
Articles 237, 262 and 299 of the Civil Code, Article 72(1) of Royal Decree no. 1238 of
9 July 1939 (Law on Civil Status) and Articles 33 and 34 of Presidential Decree no. 396
of 3 November 2000 (Regulations on the review and simplification of the Law on Civil
Status, adopted pursuant to Article 2(12) of Law no. 127 of 15 May 1997), initiated by
the Genoa Court of Appeal in the proceedings brought by M.M. and M.G. by thereferral order of 28 November 2013, registered as no. 31 in the Register of Referral
Orders 2014 and published in the Official Journal of the Republic no. 13, first special
series, 2014.
Considering the entries of appearance by M.M. and M.G., both in their own right and intheir capacity as the persons with parental authority over the minor V., and theintervention by the Association Rete per la Parità [Network for Equality];
having heard the judge rapporteur Giuliano Amato at the public hearing of 8 November
2016;
having heard Counsel Antonella Anselmo for the Association Rete per la Parità andCounsel Susanna Schivo for M.M. and M.G., both in their own right and in theircapacity as the persons with parental authority over the minor V.
[omitted]Conclusions on points of law
1.– By the referral order issued on 28 November 2013, the Genoa Court of Appeal
raised − with reference to Articles 2, 3, 29(2) and 117(1) of the Constitution – aquestion concerning the constitutionality of the rule which may be inferred from
Articles 237, 262 and 299 of the Civil Code, Article 72(1) of Royal Decree no. 1238 of
9 July 1939 (Law on Civil Status) and Articles 33 and 34 of Presidential Decree no. 396
of 3 November 2000 (Regulations on the review and simplification of the Law on Civil
Status, adopted pursuant to Article 2(12) of Law no. 127 of 15 May 1997), insofar as itprovides for “the automatic attribution of the father’s surname to a legitimate child,[even] if desired otherwise by the parents”.

1/7

The objection alleges in the first place that Article 2 of the Constitution has been
violated as a result of the encroachment on the right to personal identity, which entails
the right of each individual to recognition of identifiers of each parent’s branch of thefamily.
It is also argued that Articles 3 and 29(2) of the Constitution have been breached due tothe violation of the right of equality and the equal dignity of parents both in relation tochildren and between husband and wife.
Finally, it is asserted that Article 117(1) of the Constitution has been violated withreference to Article 16(1)(g) of the Convention on the Elimination of All Forms ofDiscrimination against Women, to the Council of Europe Recommendations no. 1271 of
28 April 1995 and no. 1362 of 18 March 1998 and to Resolution no. 37 of 27 September
1978 on the creation of full equality between parents in the attribution of the surname tochildren.
2.– As a preliminary matter, it is necessary to confirm the order adopted during the oralproceedings, which is annexed to this Judgment, ruling inadmissible the intervention by
the association Rete per la Parità.
3.– The question raised with reference to Articles 2, 3 and 29 of the Constitution is wellfounded.
3.1.– It is objected that the rule − which may be inferred from Articles 237, 262 and 299of the Civil Code and Articles 33 and 34 of Presidential Decree no. 396 of 2000 –providing for the automatic attribution of the father’s surname to a legitimate child,even if desired otherwise by the parents, is unconstitutional.
It must be pointed out, as a preliminary matter, that the provisions identified by thereferring court also include Article 72(1) of Royal Decree no. 1238 of 1939, which was
however repealed by Article 110 of Presidential Decree no. 396 of 2000. However, it isapparent from the overall tone of the arguments set forth in the referral order that thisprovision is targeted by the objections made by the referring court for the sole purposeof rendering explicit the rule − which is presupposed by it – providing for the automatic
attribution of the father’s surname only.
The existence of the contested provision and its prevailing validity within the system,
which may be inferred from the provisions that are implicitly premised upon it, hasalready been recognised within the case law of the Constitutional Court on the previous
occasions on which its constitutionality has been disputed (see Judgments no. 61 of2006 and no. 176 of 1988; Orders no. 145 of 2007 and no. 586 of 1988). In theserulings, the Court acknowledged the existence of that rule, as a premise of the sameprovisions – albeit applicable to different factual situations – as those identified by thereferring court in these proceedings (Articles 237, 262 and 299 of the Civil Code
Articles 33 and 34 of Presidential Decree no. 396 of 2000).
Although it has not been incorporated into an express provision, once again there is no
reason to doubt the current validity and imperative force of the rule that the father’ssurname is attributed ipso iure to his children.
A similar position has also been stated within the case law of the Court of Cassation,
both prior to and after the cited rulings of this Court. Indeed, the case law of the Courtof Cassation has recognised that it is possible to infer – from these albeit heterogeneous
provisions – the existence of a rule which, whilst not being specifically stipulated byany provision, is nonetheless part of the system and “without doubt constitutes the
manifestation, as a legal rule established by the state, of a custom that has become

2/7

consolidated over time” (see Court of Cassation, 1st Division, judgments no. 13298 of
17 July 2004 and no. 23934 of 22 September 2008).
In the case under examination, the rule on the automatic attribution of the father’ssurname has been challenged solely on the grounds that it does not allow the parents –who may so jointly request at the time of birth – to give the child also the mother’ssurname.
3.2.– Having described the present question in these terms, it must be pointed out that
this Court has already on previous occasions examined the provisions concerning thepriority status of the father’s surname at the time it is attributed to the child, although it
ruled the relative questions unconstitutional on the grounds that they would fall under
the discretion of the legislator when enacting any new legislation.
However, it was expressly recognised in Order no. 176 of 1988 that “it would bepossible, and probably in keeping with the evolution of the social conscience, to replace
the current rule on the determination of the distinctive surname of members of a family
established by marriage with a different criterion that affords greater respect to theautonomy of the married couple and that can reconcile the two principles enshrined in
Article 29 of the Constitution, rather than to make use of the authority to limit one infavour of the other” (see also Order no. 586 of 1988).
Eighteen years later, in view of the fact that the legislative framework had not changed,
in Judgment no. 61 of 2006, this Court expressly ruled with even greater resolutenessthat the rule under examination was not compatible with the constitutional values ofmoral and legal quality between man and wife. This system for attributing the surname
was in fact defined as the “legacy of a patriarchal conception of the family rooted in the
Roman tradition of family law and of a power within marriage that is now a thing of thepast, and is no longer consistent with the principles underlying the legal system and theconstitutional value of equality between men and women”.
3.3.– Even though many years have passed since these rulings, a “different criterion thataffords greater respect to the autonomy of the married couple” has not yet been
introduced.
Nor was the provision contested in these proceedings affected even by Legislative
Decree no. 154 of 28 December 2013 (Review of the provisions applicable to filiation,
adopted pursuant to Article 2 of Law no. 219 of 10 December 2012), by which thelegislator laid the basis for the full harmonisation of the legislation governing the statusof legitimate children, biological children and adopted children, recognising one single
status of son or daughter.
Although the provisions governing changes of surname were amended – through therepeal of Articles 84, 85, 86, 87 and 88 of Presidential Decree no. 396 of 2000 and theintroduction of a new Article 89 by Presidential Decree no. 54 of 13 March 2012,(Regulations on the review and simplification of the Law on Civil Status, adopted
pursuant to Article 2(12) of Law no. 127 of 15 May 1997) – the amendments did notaffect the rules governing the “original” attribution of the surname at birth.
On the other hand, it is important to note the intensive efforts which are being made toprepare legislative changes that will regulate the attribution of surnames to children
according to new criteria. However, at present these efforts are still ongoing.
Thus, within the family founded on marriage it is still not possible for the mother topass her own surname onto her children at birth or for the child to be identified frombirth also by the mother’s surname.

3/7

3.4.– The Court considers that this exclusion is detrimental to the child’s right topersonal identity, and at the same time entails an unreasonable difference in treatment
between the married couple, which is not justified by the aim of safeguarding the unityof the family.
3.4.1.– As regards the first grounds for unconstitutionality, it must be pointed out thatthe discrepancy between this provision and the guarantee of the full realisation of theright to personal identity, which is afforded absolute protection under Article 2 of theConstitution, is reinforced within the current legislative framework.
Due to the value of the identity of the individual, within its fullest and most complex
manifestation, and mindful of the significance under both public and private law of theright to one’s name as an expression of membership of a family group, it may beconcluded that the criteria for attributing the surname to a minor constitute decisive
aspects of his or her personal identity, which projects itself onto his or her social
personality pursuant to Article 2 of the Constitution.
It is precisely from this perspective that the Court has for some time recognised thechild’s right to maintain his or her original surname, even in the event of changes in his
or her status as a result of subsequent recognition or adoption. The original surname isin fact classified as a self-standing distinctive marker of his or her personal identity (seeJudgment no. 297 of 1996), and an “essential feature of his or her personality” (seeJudgment no. 268 of 2002; see also Judgment no. 120 of 2001).
The increasing appreciation of the value of the right to personal identity culminated in
the recent assertion by this Court of the child’s right to know his or her origins and toreceive information concerning his or her parents, as a “significant element within theconstitutional system ensuring protection for the individual” (see Judgment no. 278 of2013).
The relevant framework also incorporates the case law of the European Court of Human
Rights, which has classified the right to one’s name under the protection offered by
Article 8 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), signed in Rome on 4 November 1950 and implemented by Law no.
848 of 4 August 1955.
In particular, in the judgment in Cusan Fazzo v. Italy of 7 January 2014, which was
issued after the referral order under examination, the Strasbourg Court asserted that theinability of parents to attribute the mother’s surname to a child rather than the father’sconstituted a breach of Article 14 (Prohibition of discrimination), in conjunction with
Article 8 (Right to respect for private and family life) of the ECHR, resulting from a gap
within Italian law, which could only be filled by adopting “reforms to the legislation
and/or practice in Italy”. The ECtHR also held that this impossibility could not be offset
by the subsequent administrative authorisation to change the name of underage children
by adding the mother’s surname to the father’s.
In order to achieve the full and effective realisation of the right to personal identity,
which has its primary and most immediate expression in the name, along with therecognition of equal significance to both parents within the process of constructing that
personal identity, the child’s right to be identified from birth by the surname of bothparents must be recognised.
Conversely, the provision for absolute priority to the father’s surname sacrifices thechild’s right to identity, denying him or her the ability to be identified from birth also by
the mother’s surname.

4/7

3.4.2.– As regards the parallel ground for unconstitutionality consisting in the violationof the principle of equality between husband and wife, it should be pointed out that the
principle that the father’s surname takes priority, and the resulting difference intreatment for the married couple, is not justified either by Article 3 of the Constitution
or by the aim of safeguarding the unity of the family pursuant to Article 29(2) of theConstitution.
As has long since been observed by this Court, “it is precisely equality that guarantees
such unity, and conversely it is inequality that jeopardises it”, as unity “is enhanced
where the reciprocal relations between husband and wife are governed by solidarity andequality” (see Judgment no. 133 of 1970).
The enduring violation of the principle of “moral and legal” equality between husband
and wife caused by the disregard for the mother’s right for the child to take also her
surname, is at odds – today as in the past – with the aim of guaranteeing the unity of thefamily, which has been identified as a general rationale justifying exceptions to equality
between husband and wife, and in particular the rule establishing priority for the father’ssurname.
This difference in treatment between husband and wife in the attribution of the surname
to children, as an expression of a now superseded patriarchal conception of the family
and of relations between husband and wife, is also incompatible with the principle ofequality and with the principle of equal moral and legal dignity for the married couple.
4.– By this decision, this Court has however been called upon to resolve the question
formulated by the referring court concerning the rule governing the attribution of thefather’s surname solely insofar as it requires that children automatically acquire thefather’s surname even if desired otherwise by both parents. The ruling that it isunconstitutional is thus limited solely to the extent to which it does not permit themarried couple by mutual agreement to transmit to the children at birth also themother’s surname.
4.1– The objection relating to Article 117(1) of the Constitution is moot.
5.– Pursuant to Article 27 of Law no. 87 of 11 March 1953 (Provisions on theestablishment and functioning of the Constitutional Court), the declaration of
unconstitutionality must in consequence be extended to Article 262(1) of the Civil
Code, which still contains – with reference to the recognition of a biological child at thesame time by both parents – a rule identical to that ruled unconstitutional by thisJudgment.
Also this provision must therefore be ruled unconstitutional to the extent that it does not
permit the parents, by mutual agreement, to transmit to the child at birth also themother’s surname.
5.1.– For the same reasons, the declaration of unconstitutionality must be extended,pursuant to Article 27 of Law no. 87 of 1953, finally to Article 299(3) of the Civil Codeinsofar as it does not permit the married couple to attribute also the mother’s name bymutual agreement at the time of adoption in the event that a child is adopted by both.
6.– Lastly, it must be noted that, in the absence of agreement between the parents, thegeneral rule that the father’s surname applies will remain applicable pending theenactment of urgent legislation to regulate the area of law comprehensively according tocriteria that are finally consistent with the principle of equality.
ON THESE GROUNDSTHE CONSTITUTIONAL COURT

5/7

1) declares unconstitutional the rule which may be inferred from Articles 237, 262 and299 of the Civil Code, Article 72(1) of Royal Decree no. 1238 of 9 July 1939 (Law on
Civil Status) and Articles 33 and 34 of Presidential Decree no. 396 of 3 November 2000
(Regulations on the review and simplification of the Law on Civil Status, adopted
pursuant to Article 2(12) of Law no. 127 of 15 May 1997) insofar as it does not permit
the married couple to attribute also the mother’s name to the child by mutual agreement
at the time of birth;2) declares in consequence, pursuant to Article 27 of Law no. 87 of 11 March 1953
(Provisions on the establishment and functioning of the Constitutional Court), that
Article 262(1) of the Civil Code is unconstitutional insofar as it does not permit themarried couple to attribute also the mother’s name to the child by mutual agreement at
the time of birth;3) declares in consequence, pursuant to Article 27 of Law no. 87 of 1953 that Article
299(3) of the Civil Code is unconstitutional insofar as it does not permit the married
couple to attribute also the mother’s name by mutual agreement at the time of adoption
in the event that a child is adopted by both.
Decided in Rome at the seat of the Constitutional Court, Palazzo della Consulta, on 8
November 2016.

ANNEX:ORDER READ OUT AT THE HEARING OF 8 NOVEMBER 2016

ORDER
Having found that, in the proceedings initiated by the Genoa Court of Appeal by thereferral order of 28 November 2013 (register of referral orders no. 31 of 2014), theassociation Rete per la Parità, represented by its pro tempore legal representative, filed
an intervention on 7 April 2014.
Whereas the Association Rete per la Parità is not a party to the main proceedings;
according to the settled case law of this Court (see inter alia the referral orders annexedto Judgment no. 134 of 2013 and Order no. 318 of 2013), participation in interlocutory
proceedings before the Constitutional Court is reserved, as a rule, to the parties to theproceedings before the lower court, along with the President of the Council of Ministers
and, in cases involving regional legislation, the President of the Regional Executive(Articles 3 and 4 of the Supplementary rules on proceedings before the Constitutional
Court);
exceptions may be made to these provisions – without thereby undermining theinterlocutory nature of proceedings before the Constitutional Court – only for third
parties vested with a qualified interest that is directly related to the substantive rightaverred in the proceedings, and not simply governed, in the same manner as any other,by the contested provision or provisions (see inter alia Judgments no. 76 of 2016; no.
221 of 2015 and the relative order read out at the hearing of 20 October 2015; no. 162
of 2014 and the relative order read out at the hearing of 8 April 2014; no. 293 and no.
118 of 2011; no. 138 of 2010 and the relative order read out at the hearing of 23 March
2010; Order no. 240 of 2014; no. 156 of 2013; no. 150 of 2012 and the relative orderread out at the hearing of 22 May 2012);
accordingly, any declaration that the law is unconstitutional must have the same effecton the individual interest of the intervener as it has on the relationship at issue in theproceedings before the referring court;

6/7

these proceedings – concerning the rule which may be inferred from Articles 237, 262
and 299 of the Civil Code, Article 72(1) of Royal Decree no. 1238 of 9 July 1939 (Law
on Civil Status) and Articles 33 and 34 of Presidential Decree no. 396 of 3 November
2000 (Regulations on the review and simplification of the Law on Civil Status, adopted
pursuant to Article 2(12) of Law no. 127 of 15 May 1997), insofar as it provides for“the automatic attribution of the father’s surname to a legitimate child, [even] if desired
otherwise by the parents” – will not give rise to any direct or even indirect effects on theintervener Association;accordingly, it does not have the status of a third party entitled to participate in theproceedings before this Court.
ON THESE GROUNDSTHE CONSTITUTIONAL COURT
rules inadmissible the intervention by the Association Rete per la Parità.

7/7