Effetti in Italia della adozione co-parentale pronunciata all'estero: vecchie e nuove questioni

The paper examines some problematic issues relating to the recognition, in Italy, of a foreign decision on step-child adoption. Under Italian Private International Law (Law No 218/1995), the rule dealing with the recognition of foreign adoptions (Article 41) leaves some doubts about which regime would be applicable to children’s adoptions: the general one, concerning the recognition of foreign decisions (Article 64 ff.), or the special legislation on international adoptions (Law No 184/1983 as amended by Law No 476/1998). The Italian Constitutional Court has recently dealt with such issue (decision No 76/2016), leaving some questions, in the opinion of the Author, yet unresolved. The Author suggests that a step-child adoption, for its specific features, should never be treated as an “international adoption”, therefore excluding also the applicability of the rule concerning the risk of fraud related to the legislation on international adoptions by two Italian adoptive parents (Article 36, para 4, of Law No 184/1983). Moreover, some recent Italian case-law shows that the same sex of the adoptive parent and the child’s natural parent should not be considered as an impediment to the recognition.