The issues raised by the Court of Florence
The Juvenile Court of Florence, to which Raffaella had turned, B, raised a question of constitutional legitimacy of articles 29-bis (paragraph 1) and 30 (paragraph 1) of law no. 184/1983 (which concerns the right of the minor to a family), in the part in which they exclude people who are not married residing in Italy by the possibility of applying for international adoption and obtaining a decree of suitability. The Court had previously declared a similar question inadmissible in 2021, but agreed to review it with new topics based on articles 2 and 117 of the Constitution and on article 8 of the ECHR (European Convention of Human Rights).
The Court claimed that the exclusion of individual people does not protect the higher interest of the minor, since a stable family context can also exist in single -agent nuclei, especially if supported by an emotional network.
He also highlighted the fact that an Italian minor can be adopted abroad by a single when the legislation of the foreign country allows it, while reciprocity does not exist.
The decision
The Court declared art. 29-bis (paragraph 1) in the part in which it excludes people not combined by access to international adoption, believing that:
There is no proportionality link: the aperioristic exclusion is not necessary in a democratic society, since parental suitability must be assessed on a case -by -case basis, as already happens in exceptional hypotheses (e.g. death of a spouse during the assignment).
Has established the violation of articles 2 and 117 of the Constitution in relation to art. 8 ECHR: the prohibition of adoption by singles lides the right to private life and self -determination without corresponding to an urgent social need. The Court underlined the evolution of family models and the constitutional recognition of social formations (art. 2 of the Constitution).
Best interest of the minor.
In relation to this cornerstone principle, the Court has sentenced that stability does not depend exclusively on large -ageity, but on the concrete capacity of the adopter, verifiable through the judgment of the court.
“The best interest of the minor is directly preserved by the judicial verification concerning the concrete suitability of the adopter”, reads the sentence. “The constitutional jurisprudence has long valued the importance that this judgment is in order to pursue the” optimal “concrete” solution for the interest of the minor “(sentence no. 11 of 1981). And always this Court has not failed to highlight the importance of the support that can also be offered by the family network of reference (judgments no. 183 of 2023 and n. 79 of 2022), of which the judge can take into account, during the examination on the accorted suitability of the applicant to adopt (articles 29-bis, paragraph 4, letter c, and 30, paragraph 1, of the law n. 184 of 1983, of the minor in Italy, articles 34, paragraph 2, and 35, paragraph 4, of the same law) “.
Furthermore, underlines the Consulta, “if, therefore, it must be considered that the single person is suitable to guarantee the minor a stable and harmonious environment, on the other hand, the need, underlying the choice of the legislator, to ensure the adopted” the presence, from an emotional and educational point of view, of both figures of the parents “(sentence no. 1986 of 1986) is not pursued with a suitable and proportionate means. As has already been detected in the past (sentence no. 183 of 1994), it is an application that can justify “an indication of preference for adoption by a married couple”, but which does not support the choice to convert this family model into an open -air exclusion of individual people from the audience of adoptants “.
Effects of the sentence
Single people residing in Italy can now apply for international adoption, provided they meet the other required requirements (e.g. age, psycho-social suitability).
The rules for national adoption remain unchanged (art. 6 Law 184/1983), but the Court leaves the possibility of future interventions on the subject open.
