Before December 5, 2016, the old article 77 of the Civil Code provided that: “The legitimate child bears the name of his father”. Indeed, until this date, the devolution of the name followed the patriarchal tradition knowing only the devolution of the father.
However, this difference of treatment between father and mother, which no longer corresponds to societal developments, was considered discriminatory by the European Court of Human Rights.
Thus, in the Burghartz v. Switzerland case of 22 February 1994 - concerning the names of the spouses - the European Court of Human Rights condemned Switzerland on grounds of patriarchal preference.
Similarly, in the Cusan and Fazzo v. Italy judgment of 7 January 2014, the European judges considered that the choice of the surname of the child by his parents is an intimate and affective matter that enters in the private sphere so, Italian law had infringed the Article 8 of the Convention by not authorizing the devolution of the mother's name.
In that case the Court reminded, “the importance of progress towards gender equality and the elimination of all discrimination on grounds of sex in the choice of surname”.
Therefore, the Law No. 1.440 on the patronymic name of 5 December 2016 now authorizes parents to choose to pass on the mother's name to their child rather than the father's name. A first step towards equality between men and women.
However, this freedom of choice is not absolute: if the parents can choose to pass on to their child either the father's name or that of the mother, in case of non-agreement, it is the devolution of the father's name that remains the rule.
Finally, the name change can be retroactive: couples with all children under the age of 13 have 18 months to change their name if they wish, within the limit of the same name for all children.
It was not considered appropriate to go further by allowing parents to give their child a double name chosen from among theirs, within the limit of one name per parent. Indeed, this openness does not seem absolutely necessary today, both from a legal and societal point of view.
Legally, the possibility for parents to choose to pass on the mother's name complies with the recommendations of the European Court of Human Rights.
From a societal point of view, a study in comparative law has pointed out that the laws which have opted for total freedom in the choice of the name given to the child have some limitations: not only a very large majority of couples continue to give to their children the name of the father, but the devolution of a double name also seems to create a risk of genealogical confusion.
Thus, while reserving for itself the possibility of changing the rules of devolution in future if it could be necessary, the Government has, currently, adopted a pragmatic and reasonable reform.