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LGBTQ+, Single or Past age 35: Non-traditional families’ fertility and the law

By Agnese Vitali

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Woman kisses her partner's pregnant belly

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In 2016, Italy began recognising the legal status of same-sex couples and cohabitants (law n. 76/2016), which was a major step in the recognition of non-traditional families following pressure exerted by the European Court of Human Rights. The new law, however, failed to provide a comprehensive regulation on parenting rights for same-sex families. Much uncertainty continues to surround the fate of children born in countries that recognise access to parenting rights and services for same-sex couples. Scholars strove to find solutions within the existing legal framework, such as access to the step-child adoption for the parent who does not have a biological relationship with the child (Irti, 2016; Patti, 2019). However, this solution is unsatisfactory in many ways (e.g., step-child adoption does not result in ‘full’ legal recognition for the child) (Ferrando, 2019).

These legal changes and their subsequent shortcoming occurred within patterns of low fertility, which are now a stable reality for many countries and rightly receive attention from public policy, the media and the public discourse. This attention to low fertility, however, clashes with the lack of attention given to those who strive to become family but face legal obstacles to it.

Access to assisted reproduction practices and recognition of parental status is a mirage in many European countries for single people, older (heterosexual) couples and LGBTQ+ families – for simplicity, ‘non-traditional’ families. Different countries have adopted different legal frameworks, policies and practices for regulating the parenting rights of non-traditional families (Digoix 2020). Such differences create inequalities: whether parenting rights are recognised and whether parenting is even accessible for ‘non-traditional’ families in some places. Overall, despite non-traditional families increasingly becoming more widespread, the law remains focused on the traditional nuclear marital family (Palazzo, 2021). In particular, the regulation of parenting rights faces challenges linked to the myth that children only thrive within traditional families – a belief now debunked by empirical research (e.g. Goisis et al., 2019).

Furthermore, even where parenting rights are recognised, parenting is hardly free. The lack of public welfare linked to accessing fertility when natural conception is difficult or impossible is being picked up by a flourishing private sector. However, this makes it accessible only to those who have the means to pay its expensive bills and – in the case of Italy – to travel to foreign countries. Large American companies have started to offer fertility benefits such as IVF treatments – but also adoption and surrogacy – with the aim of attracting and retaining the best talents (Leonhardt 2022). Again, the access to such benefits is not for all but rather targeted to the highly-educated workers in professional/managerial occupations.

Another potential solution that is relevant for non-traditional families’ fertility is the use of assisted reproductive technologies (ARTs). Italy has adopted a strict regulation of ARTs with law n. 40/2004. In its first provisions, the law makes clear that reproductive technology should only be considered as an exception to be used in situations of infertility. Moreover, access is confined to only heterosexual married couples. Ultimately, the law expressly prohibits donor fertilization and surrogacy. Finally, adoption is only available for married heterosexual couples who have been co-residing for at least three years.

To get an understanding of the role that these legal blind spots and inconsistencies create, the newly-funded project ‘ALFA - Aligning Law with Family Arrangements: Non-traditional Families’ Contribution to Fertility and Parenting in Italy’ combines socio-demographic approaches with a desk-based legal approach and aims to shed light on actual (i.e., the number of children they have) and potential (i.e., whether and how many children they would have if the legal and material obstacles to becoming parents were removed) fertility of non-traditional families in Italy. Simultaneously, it investigates what the most pressing legal reforms needed to protect the rights of parents and prospective parents in non-traditional families are.   

 

References

Digoix, M. (2020). Same-sex families and legal recognition in Europe. Springer Nature.

Ferrando, G. (2019). I bambini prima di tutto - Gestazione per altri, limiti alla discrezionalità del legislatore, ordine pubblico. Nuova giur. civ. comm., 815824.

Goisis, A., Remes, H., Martikainen, P., Klemetti, R., & Myrskylä, M. (2019). Medically assisted reproduction and birth outcomes: a within-family analysis using Finnish population registers. The Lancet, 393(10177), 1225-1232.

Irti, C. (2016). L'adozione del figlio del convivente (omosessuale): la cassazione accoglie l'interpretazione evolutiva dell'art. 44, lett. d), l. n. 184 del 1983. Familia, 309-325.

Leonhardt, M. (2022). Fertility benefits have become a major weapon in the war for talent. Fortune, March 5, 2022.

Palazzo, N. (2021). Legal Recognition of Non-Conjugal Families: New Frontiers in Family Law in the US, Canada and Europe. Oxford, Hart Publishing.

Patti, F.P.. (2019). Riconoscimento del figlio e gestazione per altri. Treccani. Il libro dell’anno del diritto 2018, https://www.treccani.it/enciclopedia/riconoscimento-del-figlio-e-gestazione-per-altri_%28altro%29/

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