ROME—Chiara Foglietta did not have sex with a man to conceive the healthy baby boy she and her partner Micaela Ghisleni delivered in Turin last week. And she says she’s not going to pretend that she did. But because she won’t lie about sex, the couple, both of whom are Italian nationals, have been denied the right to register little Niccolò as their child in Italy because, legally, he wasn’t conceived through “heterosexual sexual intercourse.”
It would be easy to write this injustice off as just one of a number of laws that make it virtually impossible for same-sex couples to have a family in Italy and also obey the law. The legislation also punishes straight couples who have children through assisted fertility, who also have to lie about how their babies are conceived to have them recognized. But it is much more difficult for gay couples.
It is currently illegal for same-sex spouses to adopt their partner’s stepchildren, which is a compromise addendum from a fierce debate around a civil union referendum in early 2016. The law passed, making Italy the last nation in Europe to recognize same-sex unions, but conservatives, backed by the influential Roman Catholic Church, would only agree to it with the stepchild adoption ban clause. Straight couples can adopt each other’s stepchildren so long as they are in a “stable heterosexual relationship,” and they can adopt foreign children, which gay couples and singles cannot do under Italian law.
The prohibition of stepchild adoption is meant to discourage surrogacy, which is illegal in Italy. Because of the law, which was last reconfirmed in 2002, only the parent with the biological link to the child can be considered his or her parent in Italy—which is something that must be genetically proven during the process of registration.
In some exceptional cases, children born abroad through surrogacy who have both parents’ names on the foreign birth certificate are allowed to translate the document and register the child here in Italy, though there is no guarantee and it is often up to the discretion of the municipal clerk doing the paperwork, which is reminiscent of Kentucky clerk Kim Davis, who made headlines when she refused to sign a same-sex marriage license.
More often than not, only the biologically linked parent has a right to be listed as the child’s parents in Italy, even if they are both be recognized abroad where the baby was born. If there is no biological link to either parent, registering the child in Italy is impossible because of the law that stipulates that same-sex couples and singles cannot adopt.
In theory, things are often far easier when a child is born to one partner in a lesbian couple in Italy, such as little Niccolò who Foglietta carried to term after an IVF treatment in Denmark. But the lesbian parents are faced with a daunting decision. They must declare that they had heterosexual sex before the child can be recognized. Because assisted fertility of any kind is illegal in Italy, there isn’t even an option on the registration form to declare anything but male-female copulation. Most gay couples just tick the box and pretend. But Foglietta, a council woman with the center-left Democratic Party, refused.
“You must declare that you had a union (sexual act) with a man to recognize your child, and to get him registered you have to tell a lie,” Foglietta wrote on her Facebook page. “There is no formula to say that you did artificial insemination. Each child has the right to know his own story, the set of circumstances of their procreation.”
The law also punishes heterosexual couples who admit they conceive through IVF, whether via a surrogate or their own or donated embryos. In Italy sperm and egg donation are also illegal (in addition to IVF and surrogacy). Only if a woman is medically certified as infertile can she even admit she underwent IVF treatment so long as they can prove they are a “stable heterosexual couple.” And since admitting assisted fertility is risky, most heterosexual couples also just check the “had heterosexual intercourse” box on the form that asks how the child was conceived.
The Daily Beast spoke to a heterosexual couple who underwent fertility treatment in Spain who don’t want to give their names out of fear their children might lose their rights. “We spent thousands of dollars and many tears to have our twins,” the mother said, recalling three failed IVF attempts before finally successfully delivering to term. “There was no way I was going to risk not registering them. Of course we checked the box.”
Dario De Gregorio and Andrea Rubera, a same-sex couple in Rome, were married in Canada in 2009, before Italy recognized same-sex unions. They have three children—twins and a daughter—through a surrogate in Canada where both of their names are on all three birth certificates. But when they crossed the border to Italy, they could only register their children based on biological link, so one of the men is the official parent of the twins, and the other is the official parent of the daughter in Italy.
Foglietta and Ghisleni could have very easily checked the box, pretended their son was conceived through sex, and never given it another thought. But because Foglietta is a politician, she believes she will be able to raise awareness about the absurdity of this legislative loophole.
“To register at the registry office I must declare a forgery,” she says. “Reality must adapt to the bureaucracy and not the contrary, which currently forces those like me, who even hold a public office, to declare falsehood before the law.”
“I need to make this stand not for me, but for Niccolò, for all Rainbow children, for families who do not have the same strength to face these battles, for the children of single women and those with partners who have chosen medically assisted procreation with external donors and want to tell the truth,” she says. “The problem is today, not in the future, but in the present—the present that is here, now.”