FILIATION: CONCEPT OF FILIATION AND CRITERIA FOR ESTABLISHING THE
RELATIONSHIP
Filiation is the relationship that is established between two individuals one of whom is called
a parent and the other a child. There are two types of filiation: blood filiation, in which the
parent is the one who, through his or her own functional genetic contribution, has provided
for the conception and procreation of another person, and adoptive filiation, when the
relationship arises through court intervention.
The process that characterizes generation does not always make it possible to establish with
certainty the author of conception. The identification of the mother is facilitated by the
presence of events that are difficult to conceal, such as pregnancy and childbirth: therefore,
she who gave birth is believed to have also conceived the child.
More difficult, however, is the identification of the father. To facilitate this proof, the legal
system has placed two presumptions: the presumption of paternity and the presumption of
conception.
In the presumption of paternity, the husband of the woman who gave birth to the child is
deemed to be the father of the child, provided that the birth or conception occurred during the
marriage.
With the second presumption, the legal system seeks to establish the time when conception
took place: it is in the range of 300 to 180 days before birth. Therefore, conception is
presumed to occur during marriage if the birth of the child occurred at least 180 days after
the marriage was celebrated and no later than 300 days after the dissolution
the annulment of the marriage or separation of the spouses.
No presumption is provided when the woman is not united in marriage, because the bond
that makes generation by the husband likely is missing: consequently, paternity and
maternity will have to be proved if there is a lack of spontaneous recognition of the child by
the parents.
These principles have been undermined by modern artificial insemination practices. In
particular, the most important problem is whether, in heterologous fertilization (i.e., with
donor sperm), paternity should be attributed to the person who provided the sperm or to the
husband of the parturient who intended to have a child of his own with this technique, since
he assumed responsibility for procreation. Also problematic is the identification of the mother,
in the case of resorting to the practice of IVF, which occurs when the embryo, conceived in
vitro by a couple, is transferred to another woman so that she can provide gestation and
delivery, and then return it to the copy herself.
A similar problem arises when the so-called carrier mother also provides the egg and genetic
makeup, while artificial insemination takes place using the sperm of another woman's
husband in order to enable the infertile couple to have offspring. In the latter case in
motherhood is undoubtedly attributed to the carrying mother, as she provides all the
functions proper to gestation (genetic heritage and gestation).
LEGITIMATE AND NATURAL FILIATION.
The familial status of child and parent implies the set of rights of duties that arise from the
filiation relationship.
Even after the reform of 75, the system has maintained the distinction between legitimate
and natural children.
Legitimate children are those created by the parents during the periods when they were
united in marriage; natural children are those born out of wedlock.. These, in turn, may be
recognizable or nonrecognizable, depending on whether or not formal establishment of the
filiation relationship is permitted in their regard.
Only incestuous children are not recognizable, that is, those who are begotten by relatives or
relatives in the direct line or by siblings. Recognition is, however, permitted if the parent was
in good faith, that is, if he or she was unaware at the time of conception of the existence of
the incestuous bond. The reform of family law has scaled down the differences in treatment
between legitimate children and recognizable natural children, taking into account Article 30
Const, which declares that "the law ensures to children born out of wedlock every legal and
social protection, compatible with the rights of the legitimate family." This incompatibility
exists when the protection of the natural child would end up undermining the unity of the
legitimate family.
The differences mainly concern the criteria for ascertaining the relationship, the discipline for
assigning the surname, the right of commutation in inheritance, and the entry of the natural
child into the legitimate family of the parent.
However, worse treatment is given to non-cognizable children, who do not have family
status.
Private international law: a child begotten by foreign parents has the status granted to him or
her by his or her domestic law at the time of birth.
A child considered as such by the law of the country of which one of the parents is a citizen
at the time of birth is legitimate (Art33, Law 218/1995).
FORMAL ASCERTAINMENT AND PROOF OF FILIATION
Formal ascertainment of the filiation relationship is ensured by the birth certificate, which is
the preferred means of proof.
The birth certificate is formed by the registrar upon the declaration of one of the parents or an
appointed special attorney of the parents or a person who witnessed the birth.
This declaration must be made within ten days of the birth to the registrar of the municipality
in whose territory the birth occurred or in the municipality of the parents' residence.
If these deadlines are not met, the registrar must provide for the late formation of the birth
certificate, stating the reasons for this.
On the other hand, in cases where the declaration was not made even late or the birth
certificate is missing altogether, the registrar must inform the attorney and draw up the birth
certificate at the end of the rectification proceedings.
If the woman who gave birth is married, the registrar must indicate her husband as the father
of the child in the birth certificate. This is not the case if a birth declaration is made that the
author of conception is someone other than her husband. In fact, since the prohibition
against recognizing children who are
adulterous, one who is married can recognize the child generated with a person other than
one's spouse. Thus, in this case, the presumption of paternity does not apply if the legitimacy
of the child is ruled out by the declarant parent at the time the birth certificate is drawn up: a
natural filiation act will then be formed.
If the woman who gave birth is not married, only the parent who recognizes the child may be
mentioned in the birth certificate; if neither parent provides recognition, the child will remain a
child of unknown.
In the absence of the birth certificate due to non-registration in the birth registry, dissolution
or loss, proof of filiation can be provided through so-called " possession of status" for
protracted.
Possession of status results from a series of situations that collectively prove the filial
relations of kinship between a person in the family to which he or she claims to belong.
For the possession of status as a legitimate child, the following facts must occur:
(a) name, i.e., the person must have borne the surname of the purported father;
(b) treatment, that is, the parents must have treated him as a child, providing for his needs;
(c) reputation, i.e., he must have been regarded as the child of the alleged parents in social
relations than within the family.
For the possession of status as a natural child, it is sufficient if requirements (b) and (c) are
met, and fame can also apply to a limited number of people.
If possession of status is also lacking, proof of filiation may be provided by witnesses or other
means, provided there is a principle of written proof (241 cod civ).
STATUS ACTIONS.DISAVOWAL OF PATERNITY
If the birth certificate shows false information, it is always possible to obtain the change by
resorting to public or private ascertainment of parentage. Public ascertainment is achieved
by the exercise of so-called status actions. Status actions relating to legitimate filiation are
disavowal of paternity, challenge of legitimacy, complaint of legitimacy; actions relating to
natural filiation are declaration of paternity or maternity, challenge of recognition.
Private establishment of filiation constitutes the recognition of a natural child. By legitimation,
a natural child can be conferred the status of legitimate child. Some actions, therefore, have
the function of terminating the status of filiation that the person is not entitled to (disavowal
and challenge of legitimacy for legitimate filiation; challenge of recognition for natural
filiation).
The person who is already in possession of child status in order to claim another must first
act to remove the previous one.
Private international law: these actions can be initiated before the Italian court in cases
where:
-one of the parents is an Italian citizen or resides in Italy-the child is an Italian citizen or
resides in Italy
-the defendant has domicile or a representative authorized to stand trial in Italy. The
judgment concerns situations or relationships in which Italian law is applicable.
ACTION FOR DISCONTINUATION OF PATERNITY: may
be exercised if the husband of the woman who gave birth, mentioned in the birth certificate
as the father of the child, is in fact not.
The rules governing the action differ depending on whether the birth occurs within 180 days
of the marriage celebration or at a later time.
Birth within 180 days: since it is likely that the conception occurred by the future husband, the
presumption of paternity equally operates, but in a more attenuated manner, as there is still a
certain margin of possibility that the generation occurred by another man.
The plaintiff must still prove that the husband is not the author of conception.
Birth after 180 days from the celebration of the marriage: in this case the presumption of
paternity operates with greater force. The action of disavowal, is admissible only under
certain circumstances: if it is proved that during the period of conception, between 300 and
180 days prior to the birth, one of the following facts occurred:
❖ The parents did not cohabit
❖ The husband was suffering from impotence
❖ The wife committed adultery
❖ The wife kept the pregnancy and birth of the child hidden from her husband.
In the first two cases, it is necessary that the impeding situation lasted throughout the time of
conception.
The person who acts in this action must also prove that the husband is not the author of
conception: for this purpose, the wife's declaration that she committed adultery is not
enough, but genetic and blood evidence are particularly effective.
Active legitimates: father, mother, adult child or, if a minor, a special curator appointed at the
request of the child who is at least 16 years old or at the request of the prosecutor, if the
children is under 16 years old.
The action must be exercised, under penalty of forfeiture:
(a) by the husband, within one year from the birth or from his return to the place of birth or
family residence if he had been away or otherwise from the time he learned of the adultery or
incapacity to beget.
(b) by the mother, within six months of her husband's birth or knowledge of his inability to
beget;
(c) by the child, within one year after the child reaches the age of majority or, thereafter, to
since he or she became aware of the facts that make the disavowal permissible.
In the event of the death of one of the eligible persons, before the expiration of the time limit
for appeal, the action shall pass to the descendants and ascendants of the alleged father or
mother; to the spouse or descendants of the child.
Passive legitimacy: the father, mother and child or a special curator appointed in the event of
incapacity. In case of death, passive legitimacy is transferred to the same
persons to whom active legitimacy is transferred and, failing that, to a special curator.
As with all state actions, there is mandatory intervention by the prosecutor.
Effects: With the judgment of disavowal, the status of legitimate filiation is extinguished: as a
result, the mention of the husband's paternity is removed from the birth certificate, while
regarding maternity no change occurs. The person, therefore, will be recorded in the
computer archive of the civil status as the natural child of the woman and father unknown.
