While the discussion of the bill that bears the name of the rapporteur in the Judiciary Committee, the Democrat Parliamentarian Monica Cirinnà, is imminent – next January 28 – the controversy do not subside, quite the contrary. In the frontline against the text of the law as it is, there are Catholics, but not only. There are also the most respected constitutionalist jurists. To comply with constitutional requirements, they say, simply writing off the extremely contested part, which concerns the so-called Stepchild Adoption, that is, the right of one of the partners of a homosexual couple to adopt the other’s child.
The entire first part of the bill, Chapter 1, concerns exclusively civil unions of the same-sex couples. It introduces de facto equality between the family based on marriage – that is, the union of a man and a woman, protected by the Article 29 of the Italian Constitution – and the so-called “specific social formations”, homosexual unions, which should be regulated in accordance with the Article 2 of the Constitution. The second part, Chapter II, which concerns cohabitation and does not take into consideration the partners’ sex, would be sufficient to regulate marriages of same-sex couples without legal, ethical, and social complications that tear social fabric apart.
It would be enough to reduce the level of politicization the issue has acquired in the public debate, without prejudices and ideological rigidity, and build innovative solutions in the excellent tradition of Italian law, without transferring disciplines that should remain separate also according to settled case law. This is what president emeritus of the Constitutional Court Cesare Mirabelli who is an excellent jurist tells In Terris. His words are a legal slap in the face of all those people who say that gay marriage is a right.
The Sentence n. 138 of 2010 of the Consulta seems to confirm that “the spouses shall be individuals of different sex.” The unions of homosexual couples, the way the Chapter I of the Cirinnà Bill regulates them, have no constitutional legitimacy?
“The civil union cannot be a photocopy of marriage under a different name. The Cirinnà Bill works a legislative override, with constant references to marriage law to regulate same-sex unions, whose discipline is necessary and useful, but without making them equal to marriage, an action that is contrary to the Constitution, which clearly excludes them. The social affective solidarity formation has constitutional significance, considered in the Article 2. It must be disciplined without assimilated it to the concept of family, which is regulated in the Article 29 “.
As you said, the bill introduces the term “specific social formation” instead of the term “family”, which is a “natural society”, regulated by the Article 29. Is it a first step towards a constitutional reform or a way to curb it?
“It is a premise, but the implications they drew from it are wrong. As a social formation, the affective solidarity union need appropriate regulation in terms of personal and property relations, and mutual moral and material assistance. A bond of solidarity on affective groundings comes into being, but we cannot equate it to marriage. It does not mean reducing its value or level of protection; it means respecting the Constitution”.
The Constitution protects the family safeguarding primarily the child’s interest. To which extent is the controversial Stepchild Adoption part of the bill designed for this purpose and not in order to meet the demands of parenthood of couples who cannot procreate in a natural way?
“The rights of those who were born, also out of wedlock, are fully protected in our system. There is a discipline of adoption of children, also in case of abandonment. A sensitive issue such as that of adoption should be written off a legal context, which concerns another issue and other rights, exactly to safeguard children’s interests. Its insertion in a bill manifests an interest of the adults in parenting, treated as a priority and exclusive right. It assimilates the partners in a homosexual couple to spouses and treats the child almost as a commodity, opening the doors to all sorts of ways to raise a child.”
Many people believe that the Stepchild Adoption is a ploy to introduce the institution of adoption for homosexual couples and is a de facto forerunner for heterologous insemination and surrogate pregnancies…
“These concerns are not meaningless, also from a legal standpoint. The bill allows a partner to adopt the other’s child (not only an already existent one, but also later in time). The issue of adoptions, I repeat it, needs to be discussed in the appropriate context of the discipline of adoptions and children’s right, in the interests of the latter. Not surprisingly, the plan to adopt the child of one’s partner in this bill relies on the 1983 law on adoption. ”
What kind of regulation do homosexual unions need in order to respect the Constitution and to ensure the protection of everyone’s rights?
“The Cirinnà Bill is divided into two parts. The first one concerns civil unions and refers exclusively to homosexual couples, configuring a pseudo-marriage. Partners are treated exactly the same way as spouses: the celebration in front of a public official in the presence of witnesses, the balance sheet, which can be in the regime of community or separation of property, for retirement benefits and survivor’s pension, inheritance rights and even dissolution through divorce. This part produces more dissent among people and in the legal system. Its elimination would be enough to settle the issue. Just the second part, which governs cohabitation of people united in stable affective relation and mutual moral and economic assistance, regardless of sex, would be left in this case. There are no conflict on this point and it would be enough to highlight and regulate all the specific social formations, protecting people’s rights and dignity.”