The refusal by Italian civil authorities to register a child using the family name of the mother and not the father, in a case where both parents were in agreement with such a course of action, has been held to be a violation of the European Convention on Human Rights in a decision issued yesterday by the European Court of Human Rights: Cusan and Fazzo v. Italy.
The Court applied article 14, which prohibits discrimination based upon various grounds including sex, in conjunction with article 8, which enshrines the right to private and family life.
There is no text of Italian law that requires ‘legitimate children’ to be registered with the surname of their father, but the local Italian courts had said that the requirement corresponded to a principle that was well-entrenched in the social conscience and history of Italy. Higher courts in Italy had held this was not a customary rule. The Constitution Court went so far as to say the rule was the result of a patriarchal conception of the family and the powers of the husband with its roots in Roman law. It said it was not compatible with the constitutional principle of equality of men and women. But the Constitution Court was unable to solve the problem, claiming this was a matter for the legislature, hence recourse to the European Court.
In yesterday’s ruling, the European Court of Human Rights said that parents, who are in principle equal, were not treated equally, because the father could give his surname to the child but not the mother.