Taking the moves from this different way of adoption, the possibility of legitimizing adoptions also for Civil Unions has been discussed. Civil Unions are regulated by Law no. 76/2016 (civil unions between people of the same sex and de facto cohabitation).
However, although initially this target seemed to have been finally achieved, the definitive and Parlament-approved bill no longer provides for the possibility for the partner to adopt the child of the other one, equally to what happens for the spouse under article 44, lett. b) of the law on adoptions (No. 184/1983) (stepchild adoption).
With regards to the adoption in particular cases, given that the lett. b) of the art. 44 l. 184/1983, provides for the adoption by the spouse of the other’s son and the different terminology used for civil unions, this provision does not apply to them. It is therefore excluded that the legitimating adoption (reserved for spouses from Article 6, paragraph No. 84) may be arranged in favour of civilly united couples.
This provision, which has been widely considered as a real juridical regression, is still a source of doctrinal conflicts for the unequivocal prejudice that the terminology still presents in relation to civil unions which are clearly not founded on “marriage”, and led the Supreme Court – with sentence no. 12962/2016 – to express in favour of the stepchild adoption anyway.
In particular, the application for adoption of a minor (who was born in Spain with a medically assisted heterologous procreation procedure) proposed by the mother’s partner, was granted. The Supreme Court, confirming the adoption for omosex couple, affirmed that this “does not determine in the abstract a conflict of interests between the biological parent and the adopted minor, but requires the Court to concretely ascertain the abscence of ant conflict”.
According to the Court, moreover, this kind of adoption “ignores a pre-existing state of abandonment of the minor and can be admitted provided that, in light of a rigorous factual investigation to be carried out by the judge, effectively realizes the pre-eminent interests of the minor”, effectively introducing a “different” hypothesis of particular adoption.