Mandatory paternity leave and the intentional mother: the landmark ruling No. 115/2025.

A historic step towards family equality.

The recent judgment No. 115 of the Constitutional Court, handed down on 21 July 2025, represents a fundamental milestone in the Italian legal landscape, extending the right to mandatory paternity leave to the intentional mother. This decision not only remedies a pre-existing regulatory disparity but reinforces the principles of equality and protection of parenthood, regardless of the parents' sex or biological ties.

The starting point of this landmark ruling lies in the preliminary reference raised by the Brescia Court of Appeal, which had highlighted the constitutional illegitimacy of Article 27-bis of Legislative Decree 151/2001, insofar as it excluded the second mother, within a same-sex female couple legally recognised as parents, from the right to take the ten days of paternity leave, paid in full. The Court of Appeal had astutely observed how this exclusion created indirect and unjustified discrimination between same-sex female-parent couples and heterosexual couples, undermining the principle of equality and the child's wellbeing.

The Constitutional Court, accepting the Court of Appeal's arguments, declared the provision unconstitutional, basing its decision on fundamental pillars of our legal system. At the heart of the reasoning lies the violation of Article 3 of the Constitution, which enshrines the principle of equal dignity and treatment. The Court stressed that denying leave to the intentional mother was not only unreasonable but also detrimental to the child's wellbeing and to equality between legally recognised parents.

A crucial point of the judgment is the firm assertion that parenthood cannot be reduced solely to biological ties. The judges made clear that legal recognition and genuine commitment to caring for and raising the child must be the guiding criteria for access to the benefits provided by law, including those traditionally associated with the paternal figure. This inclusive vision recognises the plurality of family forms and gives value to the parental role based on the assumption of responsibility and emotional investment.

Following this ruling, the intentional mother therefore acquires the full right to ten days of fully paid leave, exactly as the working father does, to be taken in the two months before or the five months after the birth, thereby ensuring flexibility suited to the needs of the new family.

The Constitutional Court's judgment marks a watershed moment for the recognition and protection of same-sex-parent families in Italy. It forcefully restates that parental rights do not depend on the parents' gender but on the duties and responsibilities they assume towards the child. This decision represents a legal and social recognition of the plurality and complexity of the forms of parenthood that characterise our contemporary legal system.

Beyond remedying a legislative injustice, judgment No. 115 opens up a broader and necessary debate on family policy and the legal recognition of rights within new family configurations. Looking ahead, this ruling could pave the way for more inclusive legislation, more attentive to social reality, guaranteeing genuinely equal protection for all parents, regardless of sex, sexual orientation or biological ties to the child. It is a fundamental step towards a fairer, more equal society, in which the wellbeing of the child lies at the centre of every legal and social consideration.

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