I legami omogenitoriali formatisi all’estero all’esame del giudice delle leggi: come tutelare l’interesse del minore?

[Machine translation] The story, at the origin of the order in question, begins in the United States, where two women united in a stable emotional relationship conceive two children, a boy and a girl, through artificial insemination from an unknown donor, then deciding to adopt each other's biological child. In this way, both mothers obtain the adoption of the child they have not conceived, with a corresponding parental responsibility that is added to that of the natural parent. Furthermore, after a long cohabitation and a phase of domestic partnership, the couple married in 2013 in the State of Washington. The family unit moves to live in Italy, where the child's adoptive mother - in possession of Italian and American citizenship - appeals to the Bologna Juvenile Court, in order to obtain recognition of the foreign sentence, which had given her the status of adoptive parent. The Court, considering, for the reasons that will be discussed in detail in this letter, that it cannot protect the interest of the child, decides to raise a question of legitimacy before the Constitutional Court. The order under consideration sets out some interesting reflection profiles, all relating, as a whole, to the role that the protection of the child's interest may have as a “counterlimit”, with respect to the parenting bans prescribed internally. In this case, a possible recognition of family ties formed in other legal systems would be achieved through a prevalence of the best interest of the child over the limits imposed by national legislation. In the opposite sense, however, a reading of the child's interest, modeled on internal limits, would risk determining, by not recognizing status filiationis, a vulnus to the child's right not to be deprived of their family.