The 2022 Italian Constitutional Court Judgment on Children’s Surnames: An International Human Rights Law Perspective

Abstract

Abstract After many years of uncertainty regarding Italian legislation on the attribution of surnames to children, in 2022 the Constitutional Court finally broke the delay and identifid both the general rule governing this issue and its possible exceptions. Unlike in the past, with Judgment No. 131/2022 the Court no longer adopted an attitude of self-restraint by referring to the legislature, but demonstrated judicial activism by “reforming” the entire discipline. The Court has eliminated the last remnants of the automatism of the paternal surname, establishing the double surname as a general rule, that is, the succession of the parents’ surnames, and the surname of only one parent as an exception. This contribution develops around three interrelated topics: the first is a reconstruction of the long jurisprudential path that preceded Judgment No. 131/2022, the second is an analysis of the innovations that this judgment brought about, and the third explains how this evolution was largely determined by a progressive adaptation of the solutions taken by the Constitutional Court to the jurisprudence of the European Court of Human Rights. Among the yardsticks of constitutional legality relied on by the Court, no reference was made to the Convention on the Elimination of All Forms of Discrimination against Women, which is the only international treaty that provides for a specific obligation concerning the choice of children’s surnames, one intended to ensure equal rights for fathers and mothers.