Judgment No. 115/2025: The Constitutional Court recognises mandatory leave for the intended mother

With Judgment No. 115 of 2025, the Constitutional Court declared the unconstitutionality of Article 27-bis of Legislative Decree No. 151/2001, insofar as it fails to grant mandatory paternity leave to an employed intended mother in a female same-sex couple who is registered as a parent in the civil status records.

The case was referred by the Labour Section of the Brescia Court of Appeal in proceedings initiated by Rete Lenford under Articles 2 and 3 of Legislative Decree No. 215/2003 and Article 28 of Legislative Decree No. 150/2011, seeking to establish discrimination against same-sex couples.

The worker, an intended mother, had been denied by the National Social Security Institute (INPS) the mandatory leave granted to employed fathers, on the grounds that she was “not a father,” despite being listed as the second parent on the child’s birth certificate. The court of first instance upheld her claim, ordering INPS to amend its IT system to allow the entry of parents’ tax codes irrespective of gender, with a penalty for each day’s delay in compliance.

However, the worker argued that the ruling did not clearly establish the right of same-sex couples to access parental leave on the same basis as heterosexual couples. This led to the referral to the Constitutional Court.

The contested legal framework

Article 27-bis of Legislative Decree No. 151/2001, introduced by Legislative Decree No. 105/2022, grants employed fathers the right to 10 days of mandatory, fully paid leave to be taken within five months of the child’s birth. It implicitly excludes the intended mother, even when officially recognised as a parent in the civil status records.

The issues raised

The Court of Appeal alleged violations of Article 3 of the Constitution (principle of equality) and Article 117, paragraph 1, in relation to:

• Articles 2 and 3 of Directive 2000/78/EC (equal treatment in employment and occupation),
• Article 4 of Directive (EU) 2019/1158, which extends the right to mandatory leave to the “second equivalent parent.”

The Constitutional Court’s ruling

The Court referred to extensive constitutional case law that values the parental role as a shared responsibility, independent of gender or biological ties (including Judgments No. 285/2010, 105/2018, and 68/2025).

It further noted that a child’s right to maintain a relationship with both parents is safeguarded:

• by the Constitution (Articles 30 and 31),

• by the Civil Code (Articles 315-bis and 337-ter),

• by international and EU instruments (UN Convention on the Rights of the Child, Charter of Fundamental Rights of the EU).

The Court affirmed that intentional parenthood has full legal relevance and that sexual orientation has no bearing on the capacity to assume parental responsibilities. The parental bond is not solely based on biological factors but arises from the conscious assumption of responsibility and the joint commitment to care for the child. In this context, excluding the intended mother from mandatory leave, despite her role being equivalent to that of a father in a heterosexual couple, is manifestly unreasonable.

Accordingly, the Court declared Article 27-bis of Legislative Decree No. 151/2001 unconstitutional insofar as it does not grant mandatory paternity leave to an employed intended mother in a female same-sex couple, both members of which are registered as parents in the civil status records.

Practical implications following the ruling

The decision obliges INPS and employers to recognise and process leave requests submitted by the second mother in female same-sex couples. This may be done via self-certification, provided the parental bond is evidenced in the civil status records.

Beyond its immediate administrative impact, the ruling marks a significant step towards a more inclusive system of protections, in line with developments in European law on work–life balance.