Mandatory imposition of father’s surname on children of married parents is discriminatory
Cusan and Fazzo v. Italy [2014] ECHR (7 January 2014)
Summary
The European Court of Human Rights found that the official practice of automatically giving a child his/her father’s surname, even when the parents have agreed to give their child its mother’s surname, is a form of sex-based discrimination that is incompatible with the European Convention of Human Rights.
Decision
The complainants are a married Italian couple residing in Milan. In 1999 their daughter was born and they attempted to register her with her mother’s surname. Their request was rejected and the Registrar proceeded to give the daughter her father’s surname. The parents complained to the local tribunal, which declared that although there was no law requiring the child to be registered with the father’s surname, doing so was based on established Italian tradition. The parents appealed this decision.
Italy’s Court of Cassation found that this issue raised an important question of constitutionality and referred the case to the Constitutional Court. The Constitutional Court considered that the Italian system was the result of a patriarchal view of the family rooted in Roman Law and was incompatible with the constitutional principle of equality between men and women. Nevertheless, the Constitutional Court considered itself unable to intervene, finding that it was for the legislature to adopt a solution that would be compatible with principles of equality, the rights of the child, and the principle of family unity.
The complainants took the matter to the European Court of Human Rights (the Court), alleging discrimination based on sex (article 14), read in conjunction with the right to family and private life (article 8).
The Court recognised that the parents of Italian children were clearly treated differently on the basis of their gender and did not find an adequate justification for such discrimination. The Court referred to similar case law from past decisions, namely Burghartz (1994) where a husband wanted to adjoin his wife’s family name before his own, Unal Tekeli (2004) which looked at the Turkish law that prohibits women from solely using their maiden name after marriage, and Losonci Rose and Rose (2010) where the complainants challenged a Swiss norm requiring married couples to make a joint request to both take on the wife’s surname, the name of the husband being otherwise automatically attributed. In all of those cases, the Court found that there was a violation of article 14 of the Convention, read in combination with article 8.
In line with those previous decisions, the Court found that the difference of treatment of parents on the basis of their gender was discriminatory and in violation of article 14 combined with article 8.
Importantly, the Court gave strong emphasis to the need to progress towards gender equality and the elimination of all forms of gender-based discrimination.
Commentary
International law contains increasingly strong recognition of the need to eliminate discrimination against women. In particular, the Convention on the Elimination of All Forms of Discrimination Against Women states:
Article 16
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation. [emphasis added]
In Victoria, the Charter and the Equal Opportunity Act 2010 contain protections against gender-based discrimination. Interestingly though, a study conducted by Deborah Dempsey and Lara Hulbert Mainka of Swinburn University and Jo Lindsay of Monash University has found that an overwhelming majority of children in Australia, and more specifically in Victoria (as that is where most of the data used comes from) are still given their father’s surname.
This decision is only available in French.
Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.