29 July 2021

The right to know one's origins which is recognized and protected in art. 7 of the 1989 New York Convention and in art. 30 of the 1993 Hague Convention, is brought back by the jurisprudence of the European Court of Human Rights to the scope of art. 8 ECHR which guarantees respect for private and family life.

The Civil Court of Cassation, starting from 2013, in multiple rulings including the sentence 22 September 2020 n. 19824, establishes the right of the child to know their origins and to access the personal data of the biological mother that she too had asked to remain anonymous, in the event of her death.

The need to protect the rights to life and health, based on the choice of anonymity, failing due to the death of the mother, involves the elimination of obstacles to the knowledge of the parentage relationship of the status of a child.

Art. 28 of the l. n. 184/83 (Law on adoption), while recognizing the adoptee the possibility of accessing information regarding his biological origins in the presence of certain conditions, however, denies access to such information if the adoptee was not recognized at birth from the birth mother, or even when even one of the biological parents has declared that he does not want to be named, or has given consent to the adoption on condition of remaining anonymous.

In this way, the conflict between the right of the adopted person to know their biological origins and the mother's right to anonymity, which has already emerged in decisions of the Strasbourg Court, is revealed.

Well, with the sentence of the ECtHR of 22/09/2012 ric. n. 33783/09 on the well-known Godelli case, the European Court condemned the Italian legal system which, unlike the French one (Odièvre judgment of 2003) does not strike the right balance between competing rights, granting unconditional preference to the mother who wants to remain anonymous.

Following the aforementioned EDU ruling, the Constitutional Court ruling no. 278/2013 which declared art. 28, paragraph 7, l. n. 184/83, where it does not provide for the possibility for the mother to revoke her own declaration of anonymity.

Well, the subject of the Court's censure was the irreversibility of the secret, deemed to be detrimental to Articles 2 and 3 of the Italian Constitution.

Therefore, according to the Constitutional Court it is necessary to provide for a procedure, established by law, which ensures with the utmost confidentiality, the possibility for the judge, at the request of the child, to consult the mother who has declared that she does not want to be appointed pursuant to art. 30, paragraph 1, of the d.P.R. 3 November 2000, n. 396, (Regulation for the revision and simplification of the civil status system, pursuant to article 2, paragraph 12, of the law of 15 May 1997, n. 127), for the purposes of a possible revocation of this declaration.

The Supreme Court is in line with the aforementioned ruling of unconstitutionality and, starting from a dissenting opinion of the Odièvre case according to which, despite the provision of a specific procedure for the revocation of anonymity by the mother in the legal system French, the mother essentially has a unilateral and discretionary right to deny her child knowledge of his origins, establishes the necessary reversibility of the decision of anonymity in the event of the mother's death: the opposite solution would in fact reintroduce that definitive "crystallization" of the choice of anonymity , already censored by the Council.

Therefore, it can be said that, following the death of the mother who gave birth anonymously, the interest in secrecy becomes recessive in the face of the adopted child's right to know their biological origins.

Consequently, all those requests relating to access to information relating to the identity of the biological parent must be accepted.