Ragioni e implicazioni della "riforma" della filiazione

[Autom. eng. transl.] The essay aims at systematically framing the so-called subsidiary law reform (referred to in law 10 December 2012, n. 219 and legislative decree 28 December 2013, n. 154), examining the premises and appreciating the impact . Overall, regulatory intervention lends itself to ambivalent assessments, depending on whether one looks at the mens legis or the regulatory technique used to implement it. From the first point of view, it completes the constitutional principle of responsibility for procreation, making the circumstances of conception - at least apparently - irrelevant to the treatment of the status of a child. In this perspective, it is rather the recent introduction of heterologous fertilization, carried out by the Constitutional Court with sentence n. 162/2014, to contradict the principle, established by art. 30 of the Constitution, for which legal parenthood arises as the effect of procreation intended as a humanly relevant biological fact and not as a pure act of will, disembodied by the biological dimension. From the second point of view, the normative intervention does not show up to the goal of the unification of the states of filiation, moreover reached by the German and French reforms, because while it succeeds in guaranteeing the uniqueness of the regime in terms of the relationship of filiation fails to realize it in terms of the methods of ascertaining and contesting the status, which remain significantly differentiated according to whether the birth takes place in marriage or outside it, in the sign of a greater precarious condition in the second hypothesis: hence the conclusion that it is a story, rather than a complete reform. On the other hand, it cannot be reproached for having broken the connection between sonship and marriage: in fact, filiation remains the natural horizon of marriage (as is demonstrated, among other things, by its constitutionally necessary heterosexuality), thus marriage continues to see the advantage of stability, which it gives to the subsidiary, protected from the norm concerning the insertion of the non-matrimonial child in the conjugal nucleus (art. 252 cc), consistent with the surplus of protection that the art. 30, 3rd paragraph of the Constitution ensures to the hypothesis in which the intersection between the family of spouses and family of children is realized.